Hussain (Migration)

Hussain (Migration) [2020] AATA 4839 (22 October 2020)
STATEMENT OF REASONS
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammed Mustafa Hussain
Ms Juveria Sultana Mustafa
Ms Rumaisa Mustafa
Ms Aatikah Mustafa
Ms Ridaa Mustafa
CASE NUMBER:  1800401
DIBP REFERENCE(S):  BCC2016/3122523
MEMBER:Karen Synon
DATE AND TIME OF
ORAL DECISION AND REASONS:         22 October 2020 at 11.54am
DATE OF WRITTEN RECORD                 2 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl.190.216 of Schedule 2 to the Regulations.

Statement made on 02 November 2020 at 6:28pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – bogus document – employment reference letter – false or misleading information – Australian employment experience – cook at a restaurant – wage theft – employer’s sponsorship cancelled by the Department – taxi driving – worked in breach of Condition 8107 – worked the requisite hours for the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 December 2017 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The Tribunal gave its decision to remit the decision under review, at the conclusion of the hearing held on 22 October 2020.
The following are the reasons for that decision.
The applicants applied for the visas on 20 September 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.190.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy Public Interest Criterion 4020 (PIC 4020).
The issue in this review is whether the applicant meets PIC 4020 as required by cl.190.216 for the grant of the visa.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The delegate, in determining that the applicant did not satisfy PIC 4020, found that:
·     The applicant provided, or caused to be provided, a bogus document being the reference letter from Biryani House date 20 January 2016;
·     The applicant gave false and misleading information in a material particular in relation to his employment for the purposes of cl.190.214 in claiming points for his employment experience; and
·     No information was provided in relation to the waiver provisions.
Throughout the course of the review the following submissions and documents were provided:
·Legal submission dated 12 March 2020
·A supplementary legal submission dated 19 October 2020 with attachments:
oASIL Trading Unit Trust, Financial Statement for the year ending 30 June 2020
oFinancial document for Ghouse and Sons PL for the period 30 June 2019 to 31 December 2019
oThe applicant’s 30 June 2020 Group Certificate showing total income of $55,038
oThe applicant’s recent superannuation payments
·The MRD decision setting aside the 457 cancellation (case number 1824684), dated 4 March 2019
·Legal submissions dated 7 February 2019 made to the Tribunal for the application regarding the cancellation decision and attachments:
oASIC records – RAAZ Pty Ltd
oEmployment contract with ASIL
oASIL records – ASIL Pty Ltd
oInvoice for applicant’s father’s hip surgery
oLetters of support from HurnWatan Australia Community Organisation and AS-Sabiqoon Inc.
·Employment contract between the review applicant and ASIL Trading Pty Ltd signed 24 February 2015
·PAYG payment summaries for the applicant for 2017 and 2018,
·The applicant’s 2017 tax return
·The applicant’s bank statements dated 18 Nov 2016 to 17 Nov 2019
·Evidence of the applicant’s qualifications
oBrighton Institute of Technology Cert III in Hospitality (Commercial Cookery)
oHolmes Institute Diploma of Hospitality Management
oBrighton Institute of Technology Diploma of Hospitality
·Vetassess positive skills assessment dated 11 March 2016
·ASIL organisation chart
·ASIL tax returns 2017-2019
·Ilyas Mohammed’s tax returns for 2017 and 2018 financial years
·Hyderabad Darbar restaurant menu
·Letter from ASIL Trading Pty Ltd’s accountant dated 12 March 2020
·Statements made by: Mr Ilyas Mohammed dated 19 October 2020 (detailed below); Abdul Majeed Mohammed dated (detailed in an attachment to this decision); Juveria Sultana (detailed below); Mohammed Abdul Kareen (detailed in an attachment to this decision)
·A letter from Mr Shahid Mahmood of Accounts Bridge, dated 19 October 2020 who writes that Ghouse & Sons Pty Ltd, for whom he has acted since July 2017, is finically viable and can ensure continuity of its business without any recourse to any lending institution.
·Statements of support from Mohammed Abdul Kareem and Abdul Majeed Mohammed who both worked with the applicant at Biryani House and had knowledge of the staff underpayments.
·The documents provided to the Department in response to its natural justice letter.
The second named applicant provided the following statement to the Tribunal and, during the hearing, reiterated these points:
I make this statement in support of the application for review my husband…and I make to the Tribunal regarding the decision taken to refuse his application for a subclass 190        visa.
I am in India with our children. I arrived in Australia in February 2014 and stayed until approximately February 2018.
Mustafa worked as a cook at Biryani house between 2012 and 2015. He had some difficulties in getting paid for his work. Life was expensive for us in Australia and Mustafa started driving taxi cabs to help support our family.    He worked very long hours to support us. He mostly worked during the day driving taxis and then worked at Biriyani House at night. His 457 visa was cancelled because of this, although the Tribunal decided to set aside the cancellation decision.
The stress of the difficult financial situation we faced caused me to sell some jewellery to

•    •

pay some debts we got into.
At all times Mustafa did his best to support us in this very difficult situation.
During the hearing the applicant explained his employment history at Biryani House (Raaz Pty Ltd) saying that he commenced work there in 2009 or 2010 after approaching the owner who worked there as a chef and was also from Hyderabad. He knew about the restaurant because he and his friends started eating there from 2008 and it was conveniently located in King Street near the college. At the time he approached the owner he was completing his diploma of hospitality and, from April 2009 to August 2010, he was paid $20 an hour which he considered to be the correct wage. He left there in 2010 because his college timetable did not allow him to work the hours the owner required. He returned to work there from July 2011 to March 2012, again being paid $20 an hour to work at the King Street restaurant. When he was close to finishing his study in 2012, he was looking for someone who would give him work in his field and approached the owner of Biryani House. It was at this time, around December 2011, that he started taxi driving. He was able to work full time then because his college course had ended. The applicant also explained some difficulties he encountered when his previous college, the Australian Institute of Career Education was closed in 2010 and the Department sent him to a new college where he completed his studies in August 2011.
Initially the applicant was very happy to be sponsored on the 457 and he was the second person sponsored by Raaz however, from March 2012, there started to be delays in being paid. After the first couple of pay periods he was put under pressure to repay all but $10 an hour of his salary. He tried to understand why this was happening and rang the owner several times, but he would not return the calls and would not be in on Thursdays which was payday. When he did make contact with the owner, he was told that because he was sponsored, he had to manage the pay situation and the owner told him he was finding it financially difficult at that time as he had started two new restaurants in Doncaster and Footscray. After some delayed pays, the owner started to transfer his whole agreed pay and made a deal that the applicant would return the money to him, only leaving $10 an hour. He believes this conversation was about one or two fortnights after his 457 employment started. From then on he paid the balance, except $10 an hour, back to the owner in cash. Asked why he agreed to this, the applicant said this was his only chance and he had so much responsibility. The owner kept saying “just give me some time”. The applicant understood this to mean that he would be repaid when the other restaurants were up and running.
The applicant believes that the difficulties the owner had in paying him and others their contacted salary of $49,400 was due to the rapid expansion of the business which started with one restaurant in King Street and quickly grew to others in Doncaster, Footscray, Dandenong and Hoppers Crossing. Over the time he was working there, Raaz also employed, the applicant believes, between 27 and 32 people on 457 visas. The applicant believes the owner was not able to pay any of these people their proper salary. The staff did not discuss their payment situation but many of them were financially very unstable.
The Tribunal invited the applicant to address the issue documented in the primary decision that he worked as a taxi driver “daily shifts from morning to late afternoon or evening and this would not enable [him] to work the hours for the sponsor as a cook as claimed”. The delegate found that there were 72 shifts when, according to the taxi login sheets, he could not also have worked at the restaurant. The applicant said he would not work at the restaurant in the evenings and explained that sometimes he was logged into his driver ID when he wasn’t on shift and that sometimes he left his ID logged in when he was working in the restaurant. He paid a fixed price of $700 a week for the hire of the taxi which was a 50/50 arrangement with his friend. Because he did not have his own car, he also used it for his private needs as well. Nobody told him that he should log in and out when he was not using it as a taxi. He said that, for example, he sometimes drove it to work and then drove it home and he did not log in and out. Then sometimes he would drive it to the restaurant where the other driver picked it up. He drove the taxi approximately 6-8 hours a day and made on average $500 week after his expenses. He did not make much because he drove during the day in the off-peak time.
The applicant said he tried to maintain a good relationship with the owner, even after his 457 was finished, because he had not paid his superannuation and he was hoping he would pay it. The owner never did pay his superannuation because the business was then closed.
At the time his first 457 visa was finished Raaz Pty Ltd had 27 people working for it and he had asked the owner to sponsor him a 186 visa. The owner told him to wait until the 457 was expiring but, in the end, he came to know he was just delaying and then he closed his business. By this stage the applicant had already started looking for another job.
Asked what he did between 8 April 2015 and 27 January 2017 the applicant said he was waiting for the visa and had no work rights so did not do anything. In February 2018 his wife and children went back to India to live with his in-laws.
The Tribunal, referring to his taxation returns provided, noted that there does not appear to be any of his taxi driving income included. The applicant confirmed that he did not declare his taxi earnings saying he thought that because he had an ABN, he did not have to pay tax. He did not pay any company tax either. He was told this by his friends and colleagues and did not get enough information about how to lodge this.
The applicant agrees he made mistakes and is truly sorry for what he has done. He promised he will never repeat this. He went through a very tough time at Biryani House and was in emotional and financial difficulties and was struggling to pay his rent and bills. The applicant said he did work 38 hours a week for Raaz and did not take any holidays while on the 457 visa except for when he went overseas. He did not get his 12 weeks annual leave.
His current employer, Mr Ilyas Mohammed an Australian citizen, gave evidence that the applicant has been a key team member the past four years and is an excellent cook with particular expertise in the Biryani style of cooking which is very famous in the area that they come from in Hyderabad. There are not many people in Australia who have expertise of the applicant in this style of cooking which he learnt overseas. He employed him after his previous chef moved on and after advertising Seek.com, although he did know the applicant personally, by word-of-mouth, through a similar circle of community members. He offered him a formal interview and initially, in 2017, the applicant started working at his restaurant in Shepparton. From 2019 he has worked in his Dandenong restaurant and has assisted Mr Mohammed in transitioning to a takeaway service during COVID-19; in fact, he has been essential to this change. Pre COVID-19 70% of the business was dine-in in the 40-seat indoor restaurant and 30% was takeaway. The business has now successfully transitioned to be a 100% takeaway business and is doing quite well in the circumstances. In addition to the applicant, he employs four casual staff. He does not work at the restaurant as he is not a qualified cook and he runs two other businesses being a convenience store and an IT company. Mr Mohammed gave evidence that losing the applicant would have a significant impact on his business and he may have to consider closing his restaurant in Dandenong despite having another year to run on the lease. He spent a lot of money in the set up and the impact on his restaurant of losing the applicant would be around $100,000. He emphasised several times how he really needs the applicant for his business. Mr Mohammed said the restaurant is a cash business and therefore having someone he totally trusts is also very important. He is still looking to open another restaurant in the CBD but, until the applicant’s visa situation is confirmed, he cannot risk a three-year lease to open it. However, with the current uncertainty, although the applicant is key to his business, the applicant is not fully concentrating on the job.
Mr Ilyas Mohammed also provided the following written statement to the Tribunal:
I am an Australian citizen. I own the ASIL Trading Unit Trust.
ASIL Trading Unit Trust operates several businesses including Hyderabad Darbar, an Indian restaurant in Dandenong.
My business bought Hyderabad Darbar as an on-going concern. The company that operates Hyderabad Darbar is called Ghouse and Sons Pty Ltd. This company is now a subsidiary of ASIL Trading Unit Trust.
Mr Hussain works in the restaurant as a cook as the holder of a temporary sc 457 visa in a nominated position which my business sponsors him to work in.
Prior to this, Mr Hussain worked for me in another restaurant I owned.
I am very happy with Mr Hussain’s work as a cook. I have previously provided evidence in support of Mr Hussain to the Tribunal (in another matter regarding the cancellation of his previous 457 visa). On this basis, I know he has had some difficulties in the past. In my experience, he is a dependable and reliable worker. He is very important to the restaurant’s operations.
The COVID-19 pandemic has adversely impacted the restaurant business. Mr Hussain has helped me to keep the restaurant open for take-away meals. So long as the COVID-19 pandemic remains under control, the restaurant will be able to return to serving meals indoors soon. Mr Hussain will play an important role in the restaurant returning to something similar to normal trading conditions.
Prior to the COVID-19 pandemic and the adverse impacts it had on the hospitality sector, including the restaurant, I planned to expand the hospitality component of my business. I wanted to open at least one more Indian restaurant in the Melbourne CBD or the western suburbs of Melbourne (or at both locations). I envisaged that Mr Hussain would be an important part of these expansion plans by assisting my business to develop menus and by assisting in cooking at the new venues (at least to begin with). Whilst it is difficult to predict whether the economic recovery would support me returning to these plans, if I do, I would look forward to Mr Hussain helping me to do so.
My interests would be very adversely affected if Mr Hussain is not granted the visa . His work is very important for the restaurant. I need good workers like him to help my business recover from the COVID-19 downturn.
Was a bogus given or caused to be given?
The delegate found the applicant gave a bogus document in support of his visa application.
In this case the document in question is an employment reference dated 20 January 2016 signed by Mr Aleem Mohammed, Director, Raaz Pty Ltd, and on the letterhead of Biryani House. In this letter Mr Mohammed relevantly states:
This is to certify that [the applicant] has been employed as a Cook with us since 15 July 2011 to the dare of 04 April 2015. He was employed as a Cook and was continuing to work as a… (sic)
Prior to this [the applicant] underwent training to work as a professional cook from April 2009 until August 2010. [the applicant] undertook all the job duties of a cook during this period to be later sponsored on a 457.
Type of employment with us
[the applicant] was employed as follows:
From 10 April 2009 -20 August 2010 – as a part time cook of minimum 20 hours per week
From 15 July 2011 – 06 March 2012, as apart time Cook of minimum 20 hours per week
From 07 March 2012 – 04 April 2015, as a full time Cook as a 457 visa holder
While the delegate did not specify which limb of s.5(1) she considered it to fall under, the Tribunal, for the sake of completeness, finds that there is no evidence before it that the letter signed by Mr Aleem Mohammed, Director, Raaz Pty Ltd on 20 January 2016 is a bogus document because:
·there is no evidence that it purports to have been, but was not, issued in respect of the applicant; and
·there is no evidence that it is counterfeit or has been altered by a person who does not have authority to do so; and
·there is no evidence that the letter was obtained because of a false or misleading statement, whether or not made knowingly.
Was information that was false and misleading in relation to a material particular given or caused to be given?
By reference to the visa application, the Tribunal records that the applicant claimed points, in order to satisfy the points test provided for by cl.190.214, for Australian employment experience for a period of three years in the period of ten years immediately before the invitation to apply for the visa. The period of Australian employment experience claimed was employment as a Cook at Biryani House during the period 7 March 2012 to 4 April 2015.

The delegate, based on records from the Victorian Services Taxi Commission, found that the applicant could not have worked the hours claimed, being 38 hours a week, during the period of claimed employment at Biryani House. In particular, the delegate noted that there were 62 shifts when it was recorded that the applicant signed off his taxi logs off prior to his 3pm shifts commencing at the restaurant.
As recorded above the Tribunal spent the majority of the hearing asking the applicant about these matters and how the records from the Taxi Services Commission can be reconciled with the hours he claimed to have worked at Biryani House. The applicant explained that he often drove the taxi, for which he has paid a flat fee for 50% use, to his place of employment and often did not log in and out as legally required. He also used the taxi as his private vehicle from time to time. The applicant did not appear to have a full appreciation of the legal requirement to log in and out and this, the Tribunal suspects, has greatly contributed to what are therefore unreliable records of the Taxi Services Commission.
While the Tribunal experienced some frustration in getting the applicant to accurately pinpoint the time when his former employer, Mr Aleem Mohammed, told him he would need to pay all but $10 of his weekly salary back to him in cash, nonetheless, on the whole, it found the applicant to be candid and sincerely remorseful that he worked as a taxi driver at the same time as he was employed on a 457 visa. In this respect the Tribunal notes the applicant readily admitted he had breached condition 8107 in relation to his previous 457 visa and likewise, in this case, the applicant has demonstrated candour by admitting that he did not declare his taxi driving income for taxation purposes. However, despite his honesty in these matters, which do weigh in his favour, the Tribunal has no doubt that the applicant was fully aware that driving a taxi was in breach of his 457 conditions.
The Tribunal accepts that the applicant continued taxi driving, while working full time at one of the Raaz Pty Ltd restaurants due to the extreme financial pressure he was put under by his employer paying him only $10 an hour. While the applicant was clearly complicit in this wage deception, because he took his full salary and then paid back, in cash, all but $10 an hour, the Tribunal is of the view that the applicant would have been powerless in this employment relationship given his future in Australia was reliant on a valid 457 visa and because he was hoping the owner would support him for a permanent visa if he complied with his demands. The fact that Raaz Pty Ltd found such wage theft to be an acceptable business model reflects wholly on it with its 457 workers being casualties of such practices. That, in such circumstances, the applicant had no recourse but to find ways to supplement his income, while supporting his wife and children, is not surprising. Given the applicant was so concerned with keeping his employer happy, in the hope of support for a 186 visa, that he was prepared to work for $10 an hour, the Tribunal has no difficulty accepting his evidence that he did work 38 hours a week for Raaz Pty Ltd until the time his previous 457 visa expired.
Therefore, the Tribunal accepts that, while the applicant worked in breach of 457 visa condition as a taxi driver, he also worked the required 38 hours a week at Biryani House. In this respect the applicant’s evidence was consistent both times he appeared before the Tribunal.
Weighing significantly in the applicant’s favour, his former employer Raaz Pty Ltd had its standard business sponsorship cancelled by the Department and was barred from further sponsorship for a period of 5 years for breaching employment conditions. Also in applicant’s favour is the sequence of events namely, that the applicant was interviewed by the Department when Raaz Pty Ltd was subject to monitoring in February 2015 and yet he was granted his current 457 in January 2017 some 20 months after the issues around Raaz Pty Ltd.’s employment practices were first known to the Department.
After considering all of the evidence before it and finding the explanations of the applicant to be satisfactory, the Tribunal has arrived at the view that there was not the requisite element of fraud or deception by the applicant necessary to attract the operation of this provision of PIC 4020(1) and, while the applicant did drive taxis during the period 8 March 2012 and 25 July 2014 and did so in breach of his visa conditions, he was at the same time working 38 hours a week for his sponsor Raaz Pty Ltd. Therefore, the Tribunal is satisfied that the applicant has not provided information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
As there is no evidence that the applicant or his wife (the second named applicant) has ever had a visa refused on the basis of a failure to satisfy PIC 4020(1) (other than in the matter now under review), PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
The Tribunal is satisfied, based on the information before it, on both the Department and Tribunal files, the Integrated Client Service Environment (ICSE) records and other identity documents that the applicant is who he claims to be.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
There is no evidence before the Tribunal to indicate that the applicant or any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A). Therefore, the applicant meets PIC 4020(2B).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.190.216.
Accordingly, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl.190.216 of Schedule 2 to the Regulations.
Karen Synon
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s.5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2020] AATA 4839

22 October 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies