GARCHA (Migration)

[2018] AATA 5194

GARCHA (Migration) [2018] AATA 5194 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr RAJINDER SINGH GARCHA
Mrs SARBJEET KAUR
Mr JAPBIR SINGH GARCHA

CASE NUMBER:  1705485

HOME AFFAIRS REFERENCE(S):           BCC2016/4066094

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 first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

Statement made on 24 September 2018 at 4:01pm

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 set aside and substitute a decision not to cancel the first-named applicant’s visa – No jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 348
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 first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The primary applicant (the applicant) was granted a Subclass 457 visa on 28 May 2015 to work in the occupation of Cook. A new nomination application was approved for Seifeddine Enterprise Pty Ltd in respect of the applicant on 18 September 2015.

3. 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 Enterprise Pty Ltd, had entered liquidation and ceased trading in September 2014. 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.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. 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.

6. The applicant appeared before the Tribunal on 31 July 2018 via telephone to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. 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

9. 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?

10. 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.

11. 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 subregulation 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.

12. The applicant was nominated to work in the position of Cook at La Porchetta by Seifeddine Enterprise Pty Ltd. The nomination was approved on 18 September 2015.

13. 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.

14. On the basis of this information, the Department cancelled the approval of Seifeddine Enterprises as a Standard Business Sponsor and barred it from sponsoring visa holders on 1 December 2016.

15. 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.

16. The Department wrote to the applicant to provide a Notice of Intention to Consider Cancellation (NOICC) on 8 February 2017. The particulars of the grounds for cancellation were stated to be that it appeared that a ground for the cancellation of a visa under s.116(1)(g) for prescribed ground r.2.43(1)(kb(iii) 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.

17. The Tribunal notes that the NOICC superseded a notice issued on 24 January 2017 and requested that the applicant disregard the earlier notice.

18. At the hearing, the applicant gave oral evidence that he was unaware that Seifeddine Enterprise had gone into liquidation until he was notified by the Department. He had been working as a cook for Mr Ali Seifeddine since the nomination had been approved and was unaware that there had been any change to the employing entity. The applicant confirmed that he understood the delegate’s decision, however he was disappointed as the issue had been with the sponsoring employer and he had done everything he had been asked by the Department.

19. Having regard to all the evidence before it, the Tribunal finds that 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.

20. 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

21. 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’.

22. In response to the NOICC, the applicant provided the Department with bank statements and a group certificate.

23. The Commonwealth Bank statements are for an account held by Mr R S Garcha and Mrs Kaur and cover the period 18 July 2015 to 17 July 2016. The statements show regular payments made to the applicant by Seif Enterprises, described as ‘wages’. ASIC records show that Seif Enterprises Pty Ltd is an Australian Proprietary Company with the following ACN: 602 935 446, and no listed ABN.

24. The PAYG payment summary (Group certificate) covers the period 20 September 2015 until 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. The Tribunal further notes that the employer issued a group certificate to the applicant from an entity that had already been liquidated and deregistered.

25. The applicant has consistently maintained that he was unaware that Seifeddine Enterprise had been liquidated and that he was employed by a different company. The Tribunal accepts that he worked as a cook at La Porchetta for the duration of his visa and considers that the circumstances in which the breach arose did not involve deliberate or significant breaches by the applicant. The applicant also gave evidence that since he was notified by the department, he has taken steps to find a new nominating employer. Departmental records confirm that on 28 February 2018, a nomination for a subclass 187 visa in respect of the applicant was submitted to the Department. The applicant advised that the subclass 187 nomination is for the position of Cook, working for Mr Seifeddine at La Porchetta in Shepparton.

26. At the hearing, the applicant gave evidence that he has had no previous compliance issues with any of his visas since he arrived in Australia in 2007 on a student visa. The Tribunal also accepts that the applicant has been cooperative with the Department.

27. The Tribunal is satisfied that the second and third named applicants would be subject to consequential cancellation of their subclass 457 visas pursuant to s.140 of the Act if the decision to cancel the applicant’s subclass 457 visa is affirmed.

28. The applicant departed Australia on 28 February 2018. Prior to his departure, he held a Bridging visa E, as such he cannot return to Australia unless he is approved for another substantive visa. The Tribunal notes that the applicant’s Subclass 457 visa was scheduled to run until 28 May 2019.

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

30. At the hearing, the applicant gave evidence that he has returned to India with his family, where he has gained employment as a cook.

31. 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.

32. The Tribunal accepts that, if the visa cancellation is affirmed, the applicant would have been subject to s.48 of the Act if he had remained in Australia, which significantly limits eligibility for future onshore applications. However, in the Tribunal’s view, it does not affect his ability to apply for a visa offshore. As outlined, the applicant has been nominated for a Subclass 187 visa. He would be eligible to apply for a sponsored visa while offshore.

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

34. The applicant did not raise any international obligations that he 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.

35. The Tribunal considers that the applicant was unaware that his nominating employer had been deregistered and his employment was with a separate company. He was provided with a Group Certificate indicating that he was paid by the nominating entity. The applicant attended work to perform the same occupation for the duration of his visa prior to cancellation. Compliance with Australian corporations law and record keeping obligations under workplace relations laws is the responsibility of the sponsoring employer.

36. 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 his visa, which would provide for him to return to Australia to work in circumstances where he had an approved nomination. The applicant’s sponsor has been cancelled and barred from sponsoring visa holders, and as a consequence he could not return to his 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 he 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.

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

    DECISION

38. 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.

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

    Sheridan Lee
    Member