Fatima (Migration)

[2018] AATA 788

Fatima (Migration) [2018] AATA 788 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Firdous Fatima
Mr Omer Syed
Miss Fatima Syeda

CASE NUMBER:  1603810

DIBP REFERENCE(S):  BCC2015/3768050

MEMBER:Michael Cooke

DATE:16 March 2018

PLACE OF DECISION:  Sydney

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 16 March 2018 at 12:51pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Contrasting evidence – Never worked in Australia – No PAYG statements – Claims to be a victim of visa fraud – Harassment by moneylenders – Attempts to seek new employer – Credible witness

LEGISLATION
Migration Act 1958, ss 116, 348, 359
Migration Regulations 1994, 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 16 March 2016 made by a delegate of the Minister for Immigration 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. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with a condition with a condition of the visa. 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 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.

4. The applicants appeared before the Tribunal on 27 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. A further hearing was conducted on 5 March 2018.

6. On 14 December 2016 an invitation pursuant to s.359(2) was sent to the applicants previous nominator regarding her employment (T1, ff.192-193).

7. The approved nominator responded to the invitation on11 January 2017 (T1, f.2011).

8. An Invitation pursuant to s.359A of the Act was sent to the applicant inviting her to respond to the information submitted by the nominator in response to the Invitation pursuant to s.359(2) (T2, ff.203-4).

9. The applicant responded by way of her representative on 13 February 2017 (T2, ff.262-274, 308).

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

11. 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

12. 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

13. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition requires the must work only in the occupation listed in the most recently approved nomination for the holder and if the holder ceases employment – the period during which the holder ceases to employment must not exceed 90 consecutive days.

14. The applicant appeared at the hearings along with her husband - who is a visa applicant. The Tribunal then heard a recounting of the applicant’s problems with her sponsoring employer - “The Lester Partnership”. She claimed that she did qualify for the job classification for which she was granted a Subclass 457 visa. However, she discovered shortly after arrival in Australia that the job she thought she was going to at “The Lester Partnership” did not exist. She never attended the workplace. The company that hired her (which has offices in the business area of Milsons Pt - North Sydney) never had any job for her from the beginning. The parties claimed the business was fraudulent and that there never was a job for her to take. The migration agent in charge of her application (Elizabeth Pham) worked at the same address as the company “The Lester Partnership”. However despite her signature on a contract with that company (T1, ff.148-150) she claimed in the hearing that she never signed the document. She claimed that assurances about a job and accommodation never eventuated.

15. Her husband said that the contact person they were given was a person called Hassan Mudassir who was an intermediary who the parties were told to contact. Subsequently the applicant informed the Tribunal that when the job did not proceed with “The Lester Partnership” Mudassir then submitted a nomination for the applicant for a company called Cloud Web Solutions Pty Ltd. This was refused by the Department (T1, f.5). The applicant claimed that Cloud Web Solutions Pty Ltd also did not exist but was created by Mudassir to assuage her when “The Lester Partnership” job did not proceed. The applicant’s husband was also obliged to pay money to Mudassir via a bank account which appeared to be his cut of the commission for the visa transaction. He was informed by Mudassir that if he did not do so she would be referred to the Department and her visa cancelled.

16. The applicant’s husband then recounted what had happened to them when they started to ask Mudassir what was going on with the applicant’s job. He claimed that Mudasi began to threaten him when he suggested he wished to take it up with the Department. The parties claimed that they were threatened with violence to their families in India. He claimed his uncle in India called the police because agents sent by people in Australia began to harass him. She claimed his persecutors then bribed the police not to follow up his complaints. They then approached him again and started a fight. In fact, the husband claimed they harassed his uncle so much that he had a heart attack and died. They had also threatened to do the same to them if they returned to India and if they complained about what had befallen them to Immigration.

17. The applicant informed that she had not worked at all since she arrived in Australia even though she was a trained accountant. Her husband worked at a bakery and he maintained the family. His father had also incurred a debt of $50,000 to a moneylender at 24% interest he informed. This would have to be paid back.

    Second Hearing

18. At the second hearing the applicant re-iterated and elaborated on many of the points she made at the first hearing but was particularly insistent that she had never worked a day at the Lester Partnership. Any indication that she did was a product of some fraudulent behaviour by Mudassir. She insisted (and has presented) a NSW Police Report indicating a complaint the applicant and her husband had made regarding Mudassir and his behaviour. The parties claimed that the applicant’s father had died from stress and harassment in India from the money lenders who had made it possible for the parties to pay for the visa application. They had, however, not been harassed or intimidated in Australia. They insisted they had never met the migration agent Ms Pham that was supposed to be acting for Lester Partnership Group.

19. The Tribunal revisited the delegate’s decision record on the Tribunal file and noted that despite the applicant’s claims that she had no communication with Cloud Web Solutions group there was evidence in the decision record that a Ms Victoria Stevenson a solicitor and migration agent had ‘consulted’ with the applicant regarding her employment and nomination by Cloud Web Solutions which was the firm that she approached (within 90 days) following the debacle with the Lester Partnership Group. This was in order to be nominated for a position and approved within the 90 day ‘window of opportunity’ to change nominators. The applicant was asked about her consultation with Ms Stevenson in oral evidence at the second hearing. She claimed she never met Ms Stevenson and never talked to her and never signed anything with her.

20. The applicant in her personal statement said she was afraid of the agents who had facilitated her visa and also the moneylenders and one of Hassan’s uncles. Her family in India was scared and they had been demanding money and trying to find out if they would be coming back to India. She had been told not to complain but her father had been harassed and beaten and subsequently died.

21. In contrast to the oral evidence given at the hearing - the decision record of the delegate (found on the Tribunal file) indicates her then migration agent claimed to the Department that “she was made redundant within a few months of commencing work due to circumstances beyond her control” (T1, f.4). Again the applicant has insisted she had never met this migration agent Ms Elizabeth Pham has never talked to her and does not have any idea about her.

22. Her agent has summarised the applicant’s situation thus:

    1.Our client (Firdous Fatima- DOB: 11/04/1988,F) and her family were granted UC457 on 27.05.2015

    2.Our client arrived in Australia on 28 June 2015 with her husband (Omer Syed —DOB: 25.10.1981,M) and daughter (Fatima Syeda- DOB: 08/07/2013,F)

    3.        Our client and her family's UC457 visa was cancelled by DIBP on 16.03.2016

    4.        Our client had applied to review of decision of DIBP to AAT on 21.03.2016

    5.        Our client and her family appeared before the tribunal on 27.10.2016

    6.DIBP officer had a view that our client ceased employment more than 90 consecutive days so she had breached paragraph 8107(3)(b) of condition 8107 of her visa.

    7.The visa application was lodged by Registered Migration Agent -Ms Elizabeth Pharm (MARN: 1001165).

    8.We have received a copy of DIBP case file number: 8CC2015/1243373 —TRN: EGO8CSNATV under FOI Act and that suggests that our client was sponsored by The Lester Partnership Pty Ltd (ABN: 31076127323).

    9.DIBP file BCC2015/1243373 contains an employment offer letter (Occupation: Accountant: Salary -$57800.00) singed by The Lester Partnership Pty Ltd.

    10.Further, it appears that the offer letter has been signed on 26.03.2015 by The Lester Partnership Pty Ltd (no name has written of the signatory).

    11.It also appears that the offer letter has been signed accepted by our client dated 05.04.2015.

    12.      Our client's 457 visa was granted on 27.05.2015 and arrived on 28.06.2015

    13.After arrival, our client never worked with any company (including the sponsor employer) however, our client has received $1923.94 on 22/07/2015 and $2401.51 on 29/10/2015 as a pay in her account.

    14.Her visa was cancelled based on notification of her employer (The Lester Partnership Pty Ltd) to DIBP of cessation her employment with the company. We refer to DIBP file, where, on 25.09.2015, Ms Pharm (Migration agent) has wrote an email to DIBP as below; where she stated that our client's last day of work was 08.09.2015 .

    15.As per Ms Pharm's email to DIBP, she is saying that our client has started work with The Lester Partnership Pty Ltd and stop working on 08.09.2015. In fact, our client confirms that she never worked with The Lester Partnership Pty Ltd and our client's visa was cancelled based on breach of the her visa condition. Below is the copy of the email.

23. The Tribunal has concerns when the oral evidence of the applicant and her husband when it is contrasted with the information in the decision record. From the recounting of the applicant (in oral evidence) and the evidence submitted to the delegate - she claims never to have “worked in the occupation listed in the most recently approved nomination for the holder” and, furthermore, that she has not had a new Subclass 457 nomination application approved for another employer in relation to them within 90 days of ceasing employment with the sponsor.   Therefore, the Tribunal finds the applicant is in breach of subclause 8107(3)(b) of condition 8107 attached to her Subclass 457 visa.  

24. 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 power to cancel the visa should be exercised.

    Consideration of discretion

25. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.

26. The applicant entered Australia to pursue work as an accountant. This employment never happened she claims and that she is a victim of visa fraud. She and her husband now owe money lenders for her migration application. They cannot pay them as she has not worked and her husband is the only wage earner.

    ·the extent of compliance with visa conditions

27. The applicant has failed to comply with condition 8107 but claims this has been due to visa fraud perpetrated on her. She has no other breaches of conditions attached to her visa of which the Tribunal is aware.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. The applicant and her husband claim that they face financial hardship from money lenders on their return to India not including the costs of relocation. The applicant also has a young child.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. She claims the circumstances were induced by visa fraud from her approved sponsoring employer who failed to provide the approved employment. The finding of the delegate by way of contrast was that the applicant was made redundant shortly after obtaining sponsorship.

29. The applicant claimed to the delegate that the visa circumstances in which the ground of cancellation arose were ‘beyond the visa holder’s control’ and that she was made redundant without ever working for her approved nominator. In the hearing she has claimed that there never was any job in the first place for her to attend and she had been the victim of a migration scam. Her representative has produced a comprehensive submission in which he presents a scenario that seeks to prove there is no real evidence that the applicant was ever employed as she should have been by the approved nominator.

    ·past and present conduct of the visa holder towards the Department

30. The applicant’s conduct towards the Department has been co-operative. She has remained in Australia without working and has not breached other conditions.

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

31. The Tribunal finds the circumstances of this case do not relate to r.2.43(1)(la).

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. There are no mandatory legal consequences.

    ·whether there would be consequential cancellations under s.140

33. There will be consequential cancellations under s.140 - being her husband Omer SYED and her daughter Fatima SYEDA.

    ·whether any international obligations would be breached as a result of the cancellation

34. There are no international obligations would be breached as a result of the cancellation. The applicant will not be separated from her child as a result of the visa cancellation.

    ·any other relevant matters.

35. The Tribunal has listened to the oral evidence of the applicant and her husband in the hearings. Her representative has also provided lengthy explanations for various aspects of her employment and life since arriving in Australia to take up work as an accountant. There is evidence presented from the parties to back up the claims they have made in oral evidence that the applicant never actually worked for the approved nominator so that in effect she could not have been made redundant as claimed to the Department. Principally, this evidence (gathered by her representative and herself) is that at no time did any payments show up in her ATO portal as would be the normal course of events when an employee is hired and employed by her approved nominator. There are no PAYG statements or tax from any employer has been submitted to the applicant’s TFN portal – according to her representative.

    Ms Firdous Fatima provides a letter from a tax agent of the review of her TFN portal. The accountant stated that there is no PAYG submitted or tax deposited by any employer. Ms Firdous provided information at the time of hearing that since she arrived in Australia; she has not worked with any employer. The ATO portal supports her statement.

36. Her explanation for the money received into her account is as follows:

    Evidence 4- Bank statement — showing salary deposits by TLP

    Ms Firdous Fatima provides ANZ bank statement from 13/07/2015 to 13/05/2017.

    She arrived on 28.06.2015 and the bank account was opened on 13.07.2015.

    As provided information at MT hearing, Mr. Hasan Mudassir has advised that she need not to go to the job and she will receive pay in her account from the company. He further advised her that once she receive the pay salary, she has to return back to him.

    Mr Hassan Muddasir taken all details (account details, Australian addresses etc) of Ms Firdous Fatima and she believes that Mr Hassan had provided those details to TLP for deposit of money in to her account and this way TLP can show to government authority that she is working with them.

    In contrast, it is noted that TLP advised MT that she worked with TLP between 08/06/2015 and 08/09/2015. If TLP is not misguiding MT, TLP must have paid her regular salary of three months, tax and superannuation. AAT must verify payroll details and superannuation details of Ms Firdous with TLP.

    As advised by Mr Hassan, Ms Firdous received $1923.94 on 22.07.2015. The bank statement shows these transactions. The transaction shows ' Pay salary from The Lester partnership

    Until 29.10.2015, she did not receive any money from in to her account

    She received $2401.51 on 29.10.2015. The transactions shows "Pay salary from The Lester Partnership P57185E15300LOCKED"

    TLP has advised DIBP and MT that Ms Firdous's employment was ceased on 08/09/2015.

    How can she receive pay from TLP after almost 7 weeks of cessation?

1. Regarding the claims of threats made to the applicant and family in India there is a NSW Police complaint that is being investigated. However,  the paperwork submitted does not elaborate any information regarding the case the applicant’s evidence. The evidence to the Department provided by the applicant’s representative (see decision record) was that the applicant was made redundant by her sponsoring employer. A further attempt to find an approved nominator failed but the applicant has suggested that it was probably in response to a breakdown of whatever arrangement the facilitator Hassan Mudassir had with The Lester Partnership Group. She insists she was never a party to the arrangement at any time.

2. The Tribunal has contacted the Lester Partnership Group in order to ascertain whether the applicant was terminated by them in view of her claim (despite payments to her account) that she never worked one minute for them. They have confirmed that she worked for them. The applicant’s representative has rebutted these claims in a response pursuant to s.359A of the Act. The applicant has also claimed that - despite evidence in the decision record from a solicitor and migration agent that she personally consulted with the applicant about a position with Web Solutions (her newly) proposed employer - she claims never to have met or had anything to do with this person

3. Thus the Tribunal is faced with the following circumstances. The applicant claims that she did not work at her nominated employer at any time. Other information indicates she did. She was terminated (she claims) when she had never performed any work for them from her arrival in Australia - either before or since. Her proposed (within 90 days) second nominator’s representative Ms Stevenson claimed that she then met with the applicant and ‘consulted with her and the company (Cloud Web Solutions) to address the requisition on nomination in an attempt to facilitate an expedited outcome for the application’. The applicant claims that she never met Ms Stevenson. Her suggestion that the Cloud Web Solutions job was a fall-back position by her agent Hassan Mudassir because the Lester Partnership Group job had fallen through. That it was just another aspect of the ‘round robin’ visa fraud perpetrated by Hassan Mudassir she suggests and which has led to her cancellation and the Police complaint.

4. The applicant has claimed to be a victim of an elaborate visa fraud perpetrated initially in India and then reaching fruition in Australia. It seems that the basis of the fraud was to get the parties indebted to moneylenders in India and then bleed the parties from any moneys they would potentially earn in Australia. On the Australian end money was paid to the applicant’s account (despite her never working) and then she was told by Mudassir and Najib (her facilitators) to hand over this money to him. The Tribunal does not know what the ‘back story’ behind the arrangement/possible scam is - but it is possibly something that the Department could further investigate.

5. The Tribunal is convinced that the applicant is a credible witness on the totality of the evidence before it. The view of the Tribunal is that the elaborate story of visa fraud that she has painted and which has led to her predicament has been established by her representative. She has also painted a lurid picture of harassment by moneylenders in India that led to the eventual demise of her father and which lies as a threat if she were ever to return to India. Mysteriously all these threats and shadowy figures have not managed to harass or threaten them in Australia – she has assured the Tribunal. In the meantime the applicant has stayed as a homemaker awaiting the outcome of her review since her arrival - whilst her husband had worked all the time.

6. The Tribunal finds nevertheless that its dealings with the Lester Partnership Group have been less than satisfactory. When seeking additional information from the company the Tribunal has encountered changed ownership, delays in accessing information that was then difficult to find due to change of personnel etc. The Tribunal when faced with the rebuttal evidence submitted by the applicant and the oral evidence of the parties finds that the applicant, on balance, should be given the benefit of the doubt. The circumstances that led to her present predicament appear (on the totality of the evidence) to have been “beyond her control”. The Tribunal notes that she had evidenced seeking out the possibility of a new employer as evidence of her genuine wish to be employed (T1, f.239-240).

7. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

8. 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.

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

   Michael Cooke
   Member