Grewal (Migration)

Grewal (Migration) [2021] AATA 3273 (25 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ramandeep Kaur Grewal
CASE NUMBER:  2016704
HOME AFFAIRS REFERENCE(S):          BCC2019/6333387
MEMBER:Bridget Cullen
DATE:25 August 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made 25 August 2021 at 1.22pm
CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – commencement of employment or genuine effort to commence – applicant’s claim of nominator’s threats and demands for money to provide employment – nominator’s claim that business location moved and applicant was invited to start employment but didn’t – little evidence of efforts to commence or extortion, no approach to police, agent or department about extortion and no move to regional location – discretion to cancel visa – length of residence and current part-time employment but no strong community ties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 137Q(1)
Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 November 2020 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.137Q on the basis that the applicant did not commence their employment with their sponsoring employer, the delegate was not satisfied that there was a genuine effort to commence employment within that period, and decided that weighing up all factors, the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent, Mrs Pooja Kaushal, of Migration Guru (MARN 1678173).
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
The Tribunal, in making its decision, has the following information before it:
·BCC2019/6333387 – the Department’s file, which contained all information before the delegate when they made the decision to cancel the applicant’s visa;
·Submissions made by the applicant’s representative, submitted on 16 August 2021, with nine (9) annexures.
Does the ground for cancellation exist?
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.
The required period under r.2.50AA for the purposes of s.137Q(1) is that the applicant must commence employment within six months of when the visa holder enters Australia holding their Subclass 187 visa.
The applicant applied for the visa subject to this cancellation on 25 January 2017, being nominated by J & J Pty Ltd. The nomination lodged by J & J Pty Ltd was approved on 4 October 2018, and the visa was subsequently granted on 16 October 2018. At the time, the applicant was offshore, arriving in Australia on 1 November 2018. Therefore, the applicant had until 1 May 2019 to commence employment with the nominating company.
The history then has two versions of events in the evidence before the delegate at the time of cancellation. The visa holder claims that they called their employer multiple times during the ensuing weeks (and months), but the employer stated he had no job for her, and then subsequently was asking for $40,000 and threatening and coercing the applicant with threats of having their permanent residency cancelled. The applicant then further claims that the nominator had a common contact pressure the applicant and began contacting the applicant at odd hours on Whatsapp, becoming more explicitly coercive with demands of money.
The applicant says that their last contact with the nominator was on 6 September 2019, asking for money, with the threat of being reported to the Department. The applicant claims that at that point in the next few weeks the business was closed and that there was ‘nothing for him to defraud me on anyway’.
The story of the nominator in their email response to the Department requesting if employment ever commenced, if the business was still trading (and if not, why), wrote the following (errors in original):
“Business is still running but moved the location. This visa holder was asked to move to start employment many times but she kept on making excuses but never moved. Business faced huge losses due to not having a permanent cook. Finally after loosing too much decided to close from there last year in july and moved to different town to start up again.
If you need any further information please let me know”
As the applicant did not commence work within six months, following the above internal investigation with the nominator that the employer did not commence work, the Department sent a Notice of Intention to Consider Cancellation to the applicant. The applicant’s response was in the form of a statutory declaration and supporting evidence.
It is very apparent from both the nominator and nominee that the applicant did not commence employment within six months, or ever, at the relevant employment from the commencement of their visa. The Tribunal finds that the applicant does not meet s.137Q(1)(a).
It is required for s.137Q(1)(b) that the applicant must have made a genuine effort to commence employment within the six-month period.
The applicant’s reasons that she made a genuine effort to commence the employment can be summarised as follows:
·The applicant had health issues from October to December 2017, and left Australia in January 2018 as a result of her mental wellbeing deteriorating. The applicant returned in 1 November 2018 and provided a text message sent on that date.
·The applicant claims to have contacted the sponsor on numerous occasions;
·The applicant claimed that there was job available for her;
·The applicant submitted that she had been extorted;
The delegate was not satisfied that the applicant made genuine efforts for the following reasons:
·The applicant provided very little evidence in relation to the attempts to contact the employer, proof that there was no position, or proof of extortion, and the delegate considered it reasonable for the applicant to have taken steps to produce substantial records;
·The applicant did not go to the employment location at any stage, or move from Metropolitan Brisbane to Nanango, where she was to be employed, from her arrival in Australia on 1 November 2018, until 27 July 2020, after the Department sent a Notice of Intention to Consider Cancellation.
oFurther, no evidence was provided of the applicant residing in a residential area in a regional area, and that the applicant had not lived in a regional area as expected in the Regional Sponsor Migration Scheme visa program.
The delegate was therefore satisfied that the applicant had not met s.137Q(1)(b).
The applicant reiterated her concerns that it “was not her fault” that she did not commence work. She did not provide the Tribunal with any further information, or detail beyond that which she had already provided to the Department in her response to the Notice of Intention to Consider Cancellation.
The applicant, and her representative, conceded at the hearing that the applicant did not commence the employment, and that there was a ground for cancellation. The Tribunal was careful to ensure that the applicant understood that this meant the Tribunal would then go on to consider the discretionary factors in deciding whether to cancel. The applicant said that she understood.
However, despite this concession, the Tribunal is not entirely confident that either the applicant or her representative were intending to concede that the applicant had not made genuine efforts commence employment. Because of this, the Tribunal has considered the evidence before it in relation to the applicant’s efforts to commence work.
The applicant applied for the visa that is the subject of this cancellation decision on 25 January 2017, seeking to be a Cook with the Nanango Food Junction Indian Restaurant, located in Nanango (regional Queensland). The visa was approved on 16 October 2018, while the applicant was visiting her family back home in India.
She then left India to return to Australia, arriving on 1 November 2018. The applicant says that she contacted Chetan Talwar, her contact with the Nanango Food Junction, sending him a text from the airport. The applicant has provided the Tribunal with a screen shot of a message that she says she sent to Mr Talwar. The Tribunal is prepared to accept that the screenshot is a text from the applicant to her prospective employer on 1 November 2018, but all the text reveals is “Hanji Bhaji I’m At Brisbane airport right now”.
The same screenshot reveals the following communications between the applicant and the same person on the following dates:
·24 April 2019 – “Sorry bhaji I will cal tomorrow”.
·26 April 2019 – Missed voice call at 7.57 pm
·28 April 2019 – “Bhaji ssk ji I hve an appointment with my lawyer then I let you know what she ask. I have no idea what should I do”.
It is notable that there appears to be no text communications between the applicant and the other correspondent between the period from 1 November 2018 and 24 April 2019.
The applicant has provided a further series of screenshots to and from the same telephone number, between April and July of 2019. This series of messages involves an exchange of email and street addresses. There are a few messages that are in the applicant’s native language, and which have not been translated by an accredited translator.
The applicant has translated one of the messages herself, by handwriting the translation alongside the message, dated 10 May 2019. This applicant says that this message demonstrates that Mr Talwar was demanded that she pay him for her visa. The message, as translated by the applicant says, “I am unable to arrange the money. I need some time.”
The applicant says, in her Statutory Declaration dated 20 August 2020, that between her arrival and seeing her representative, that she called Mr Talwar numerous times. She says that he was “still asking for $40,000; otherwise he threatened to get my Permanent Residency cancelled. At that point, he tried to exploit me by asking money to commence my job finally.”
The applicant says she had limited financial means and was relying on friends and family to help after she was unable to commence her employment. The applicant has provided the Tribunal with a copy of an email sent by her to her representative on 3 July 2019, which says:
Hi [Representative]
Kindly letting me know that what should I do now because my employer doesn’t give me a job. He said there is no job.
Thank you
That same day, 3 July 2019, the applicant corresponded with Mr Talwar as follows (errors in original):
Hi chetan
I kindly remind you that I am ready to start working from the date of granting visa we have discussed on phone when I was in India.you have to remember that I have contacted you for starting the job after came back in Australia but you told me I can’t give you a job because you are not able to pay me.I was jobless for 3 month on that time. Then I have discussed everything with my migration agent Athina Stephanou. She had called me 2 month ago to work at nanango food junction but I have told her that I’m ready to start work today even now but my employer has refused me whenever I cal him. Kind for your information that you always said you can’t give me a job. If you are emailing today then I’m kindly asking to send me the Roaster. I will come to work there.
Rampandeep kaur Grewal
Sent from my iPhone
On 3 Jul 2019, at 3:59 pm, Rajni Talwar <Email Removed> wrote:
Hello Ramandeep
This is a courtesy email to inform you that we have been waiting for so long and asking you repeatedly to start your job at Nanango food junction but due to not getting a proper response from you it is our legal obligation to notify the immigration department about you not starting your employment. As you have already been advised by your immigration agent also that you should have started the work within 6 months of approval of your visa but it has been almost 9 months since you got your visa approved but you failed to comply with the visa condition.
We did talk to your migration agent 2 months ago and she also talked to you to start your employment but you did not even respond to that conversation. We repeatedly called you to find out about when are you going to start your employment but you always failed to give any proper answer. We had suffered a lot because of you not starting job so now we don’t have any other option than notifying the department about you not joining the work. So for any further action taken by the department in regard to this matter you will be responsible for that
Thanks and regards
Nanango food junction
Sent from my Samsung Galaxy smartphone.
The applicant did not contact the Department following her arrival in November of 2018, or upon the realisation that she did not have employment. She did not contact her own representative until July of 2019. At no point in the relevant six-month period did the applicant relocate from Brisbane to Nanango, to commence work. The applicant has very limited evidence of there being any extortion, and she did not make any effort to advise law enforcement or try to obtain advice contemporaneous with the events.
The Tribunal’s view is that the applicant sat on her hands for months, and that if she was experiencing the difficulty she now claims to have had, that the Tribunal could reasonably expect more objective evidence, as well as for the applicant to have sought much earlier advice about her predicament. The Tribunal considers it telling that there are no text messages between herself and her employer for a nearly 6-month period after her arrival on 1 November 2018, and until the next communication on 24 April 2019.
The Tribunal finds that the applicant has not made genuine efforts to commence her employment within 6-months of entering Australia on 1 November 2018.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.
Should the visa be cancelled?
There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.
There is no information before the Tribunal suggesting that there would be any consequential cancellations.
The circumstances leading to the grounds for cancellation
The Tribunal has found that the applicant did not commence her role. The Tribunal has also found that the applicant did not take genuine steps to commence her employment within 6-months of arriving in Australia on 1 November 2018. The applicant waited approximately 8-months to seek advice from her own representative about whether she could seek alternative employment. The Tribunal considers that it would have been prudent for the applicant to at least contact the Department to get advice about how to proceed when she became aware that she did not have a role. The Tribunal considers that this weighs in favour of cancellation, as the applicant was aware that the purpose of the visa was for her to work for her sponsor in Nanango.
The visa holder’s current and past behaviour in relation to the Department, such as the truthfulness of statements made to officers or in applications under consideration by the Department
The evidence before the Tribunal is that although the applicant has been cooperative with processes after being contacted by the Department, she did not contact the Department to notify the Department that the role was no longer available to her. The Tribunal weighs this only slightly in favour of cancellation, as the applicant should have been proactive and contact the Department when it became obvious that she did not have a role with her sponsor.
The links to the community the visa holder may have. This can include the strength of family, social, business and other ties in Australia. Strong ties to regional Australia and continued employment in that area may also be given special consideration
The applicant, despite numerous opportunities to explain the impact cancellation would have on her, provided limited information to the Tribunal. Rather, she focussed her evidence on the anger she felt toward her sponsor, for the circumstances that she found herself in now.
The applicant did make it clear to the Tribunal that she did not want to leave Australia, as she had now been here for a lengthy period of time, having first arrived in 2009.
The applicant’s representative’s submissions assert that the applicant was unaware that she could seek alternative employment when it became apparent to her that the role with her sponsor was no longer available. The applicant eventually endeavoured to find employment, but was not successful until March of 2021, when she obtained a role working part-time in laundry business. In June of 2021, she also obtained a role working part time at a café located in regional Queensland.
The applicant has further said that she has spent a great deal of money in Australia, on her training, and living. When her visa was cancelled, she had to borrow money from friends and family.
In addition to the personal stress she is under, the applicant says that these circumstances have had an upsetting impact on her family, particularly her father who has a heart condition. Her father does not earn an income sufficient to support her family of 6 and will not be able to repay the loan they have taken to assist her in Australia. She wants to continue working to support herself, and her family, including siblings completing study in Australia.
There is no evidence of any strong ties to regional Australia, or Australia generally, before the Tribunal, and the Tribunal notes that the applicant’s employment is only very recent. The Tribunal weighs the applicant’s links to the community slightly in favour of not cancelling the visa, given the length of time the applicant has now been in Australia.
The length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

As the applicant did not commence working for her sponsor, and was previously on a series of student visas, the Tribunal does not weigh this factor for or against cancellation.
In balancing the factors for and against cancellation, the Tribunal has given some weight to the personal inconvenience, and stress, that cancellation will cause to the applicant after an extended period of time in Australia. However, the purpose of the Regional Sponsored Migration Scheme is for the applicant to work for an approved sponsor, in regional Australia. The applicant has struggled to find work and is not working for an approved sponsor.
The applicant spent a lengthy period of time living in Australia without employment. The Tribunal considers that the applicant’s circumstances do not fit within the overall purpose of the visa scheme, which is to bring skilled labour to approved sponsors in regional Australia, and that this weighs strongly in favour of cancellation.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Bridget Cullen

Member

[2021] AATA 3273

25 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction