Kaur (Migration)

[2017] AATA 2771

Kaur (Migration) [2017] AATA 2771 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramneet Kaur
Mr Rupinderjit Singh

CASE NUMBER:  1619414

DIBP REFERENCE(S):  BCC2015/3170342

MEMBER:Bridget Cullen

DATE:20 December 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

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

Statement made on 20 December 2017 at 5:07pm

CATCHWORDS
Migration – Cancellation – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination Scheme) – Incorrect information in application – Nominating employer allegedly ceased trading prior to grant of visa – Nominating employer still trading at time of grant of visa – Duty to inform of change in circumstance - Applicant unaware of financial difficulties of sponsor - Consequential cancellation – No jurisdiction to review consequential cancellation

LEGISLATION
Migration Act 1958, ss 104, 107, 109, 140, 352
Migration Regulations 1994

CASES
Farah v MIAC (2011) 120 ALD 249
Briginshaw v Briginshaw [1938] HCA 34
Shi v Migration Agents Regulatory Authority [2008] HCA 31

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) failed to inform the department that she ceased employment with her nominating employer, Café Kathmandu, and that Café Kathmandu had ceased trading, three days prior to the grant of her subclass 186 visa.

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

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. The applicants appeared before the Tribunal on 19 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ms Katrina Lynn and Ms Juliet Robinson.

6. The applicants were represented in relation to the review by their registered migration agent, who is also a solicitor. The representative attended the Tribunal hearing.

7. 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

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

9. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Evidence before the Tribunal

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

12. Documents before the Tribunal establish that the applicant came to Australia in April of 2009 as the holder of a student visa and successfully completed courses in Commercial Cookery and Hospitality Management. After concluding her studies she was granted a subclass 457 visa to work as a cook for Cafe Kathmandu Pty Ltd ATF the Sapkota Family Trust at the company's Maze at Carrara restaurant at Coco’s Shopping Centre in Carrara. She commenced working for the company in June 2012.

13. The applicant has provided to the Tribunal a copy of the decision record of the delegate for the decision to cancel her visa. In the decision record, the delegate identifies the non-compliance that was identified and particularised in the s.107 notice, being non-compliance with s.104 of the Act:

    On 25 August 2014 the sponsor Café Kathmandu Pty Ltd ATF Sapkota Family Trust lodged an Employer Nomination Scheme nomination application with the department, nominating the visa holder in the occupation of Cook.

    On 25 August 2014 the visa holder lodged an application for an Employer Nomination Scheme subclass 186 visa. The visa holder completed an Application for Permanent Employer Sponsored or Nominated Visa application form (the Form) answering the following questions;.

    At page 1 of the Form which asks for Nomination details the visa holder answered as follows (bold added for emphasis);

    Reference number type:        Nomination TRN

    Transaction reference:        EGO6GQUG6H

    Subclass:       186

    Visa application stream:        Temporary residence transition

    At page 13 of the Form the visa holder answered “Yes” to the Declaration which states you will “inform the Department of Immigration and Border Protection in writing immediately as they become aware of a change in circumstances (including change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.”

    The Transaction reference EGO6GQUG6H refers to the nomination lodged by Café Kathmandu Pty Ltd.

    Based on the information before the delegate and having met all relevant criteria including that the position is still available to the visa holder as the applicant, the Employer Nomination Scheme visa was granted on 8 December 2014.

    It has come to the attention of the department that the sponsoring business Café Kathmandu Pty Ltd was no longer open for business as at 5 December 2014.

    On 12 August 2014 the Australian Securities and Investment Commission (ASIC) published a proposal to deregister Café Kathmandu Pty Ltd in response to the non-payment of the company registration fee. On 09 October 2014 the Deputy Commissioner of Taxation applied for a winding-up order which was heard in the Federal Court in Queensland on 21 November 2014.

    On 05 December 2014, Café Kathmandu was placed into liquidation by an Order of the Federal Court of Australia. According to the liquidators (Worrells Solvency and Forensic Accountants) Café Kathmandu was no longer trading. The restaurant therefore was no longer operating and the visa holder was no longer working for them as a cook.

    I consider that from 12 August 2014 Café Kathmandu was no longer a viable company for the purpose of immigration sponsorship and by 5 December 2014, the company was no longer trading.

    The visa holder lodged her application for the visa on 25 August 2014 and by the time the visa was granted on 8 December 2014 the nominated position of Cook was no longer available to the visa holder because Café Kathmandu Pty Ltd was no longer trading. I consider the visa holder would have become aware of the cessation of trading prior to the grant of her visa on 8 December 2014. The visa holder would not have been working there as at 5 December 2014 which was three days prior to the visa grant. Had the Department been made aware that the sponsoring business was no longer trading and therefore the visa holder no longer worked for them in the nominated position of Cook; I consider the visa is likely to not have been granted.

    I consider the information before me indicates that the visa holder has breached section 104 of the Act because she did not inform the Department in writing of a change in circumstances prior to the grant of the subclass 186 visa in particular, the visa holder failed to inform the Department that she ceased employment with Café Kathmandu prior to the grant of her visa. At the time the visa holder’s visa was granted on 8 December 2014, the business Café Kathmandu was closed for business and she did not have a position with them. By failing to advise the department of a change in circumstance relevant to the grant of the visa, the visa holder was afforded a migration advantage which she may not have otherwise been entitled to. As a result her visa is liable for cancellation under section 109 of the Act for not complying with section 104.

14. The delegate summarised the applicant’s response to the Notice as follows:

    The visa holder in her statutory declaration dated 1 November 2016, states in part:

    “Further, I want to state that I was totally unaware of the facts regarding strike-off action against my employer and even regarding de-registration of the company. On 19/12/2014 my employer relieved me from my duties effective then and there. I left the job and my last working day was 19/12/2014 and my last wages was received on 12/12/2014 in my account (evidence attached).

    My visa should not be cancelled as I was totally unaware of facts going on behind the scenes. While on my 457 visa, I complied with my conditions.

    As per s104, I have been questioned why I have not notified the department about the changes in my circumstances (termination of employment) as I was assured by my employer that he will himself notify the department that my employment has ceased and has been terminated by his company. Moreover, as I have mentioned above that I never had a single clue regarding the liquidation of the company. If I would have known this, I would be the first person to inform DIBP. If I would have known, that the of (sic) ceasing my employment without notifying the department will put my future at risk, I would have definitely notified the department but I have totally relied on my employer to notify the department regarding my termination.”

15. The visa holder's former sponsor, Mr Suresh Sapkota, has submitted a statutory declaration dated 2 November 2016 in which he states that he forgot to advise the department about his company going into liquidation, and further that he did not tell his employees of the de-registration of his company.

16. There is no evidence on the departmental file provided to the Tribunal to support the statement in the decision record that the Department had been advised by then liquidators that on 5 December 2014, when Café Kathmandu was placed into liquidation by an Order of the Federal Court of Australia, ‘Café Kathmandu was no longer trading. The restaurant therefore was no longer operating and the visa holder was no longer working for them as a cook’.

17. The applicant maintains that she was unaware that the circumstances on which her application was based had changed. In a statutory declaration provided to the Tribunal dated 14 December 2017, she states:

    DIBP has stated that I have failed to provide notification of a change in circumstances and that I stopped working for Cafe Kathmandu Pty Ltd on 5 December 2014 .

    I strongly deny that there was a change in my circumstances, as alleged.

    Advice of proposed deregistration and subsequent liquidation of Cafe Kathmandu Pty Ltd

    At all material times I was unaware of my Employer's dealings with the Australian Securities & Investments Commission (ASIC) or the Australian Taxation Office (ATO).

    I was not involved in the control and management of Cafe Kathmandu Pty Ltd, or in any way involved in the company's corporate governance.

    I note that DIBP have alleged that from 5 December 2014, Cafe Kathmandu Pty Ltd had ceased trading and that I was no longer working for my Employer as a cook.

    In response, I say that the allegation is not true and that the company's "Maze at Carrara" restaurant had not ceased trading and that I continued working for my Employer as a cook until the termination of my employment on 19 December 2014.

    I am informed by my Migration Agent and verily believe that they requested Hartnett Lawyers make enquiries with CBRE (C) Pty Ltd, the centre manager regarding my employer’s lese of the restaurant premises at Carrara. My Migration Agent has provided me a copy of a letter from CBRE addressed to Hartnett Lawyers dated 12 December 2017 which states that my employer continued to trade until lock out on 11 February 2015. (Letter annexed to affidavit).

    I was unaware that on 5 December 2014, Cafe Kathmandu Pty Ltd was placed into liquidation by an order of the Federal Court of Australia.

    …

    The "Maze at Carrara" restaurant catered largely to local customers.

    I recall that during the period 5 December 2014 to 12 December 2014, a number of local customers came into the restaurant. ln addition, I would also interact with staff of nearby businesses.

    I have requested a number of "Maze at Carrara" restaurant customers and staff from nearby businesses to provide letters confirming that l was working for my Employer as a cook.

18. In addition to this statutory declaration, the Tribunal received a number of other documents from the representative immediately prior to the hearing. These included:

    A letter from Ms Katrina Lynn of the Carrara Medical Practice, dated 11 December 2017;

    A letter from Ms Juliet Robinson of Carrara, dated 13 December 2017; and

    A letter from Ms Andrea Lazar of Good Price Pharmacy, Coco’s Shopping Centre, dated 13 December 2017.

19. The writer of each of these letters states that they regularly ate meals prepared and served by the applicant at the Maze at Carrara restaurant, and recall that the applicant was working in the kitchen in mid-December 2014.  The Tribunal contacted both Ms Lynn and Ms Robinson, who gave sworn evidence.  Ms Lynn was confident that she was served by the applicant just before or after the 13^th December 2014, as she recalled planning the occasion she held in the restaurant around his birthday.  Both Ms Lynn and Ms Robinson were confident that they witnessed the applicant working int he restaurant after 5 December 2014.  Although the Tribunal was unable to reach Ms Lazar, her written evidence is consistent with that of Ms Lynn and Ms Robinson, in witnessing the applicant working in the Maze at Carrara in mid-December 2014.

20. As Ms Lynn and Ms Robinson are both unrelated witnesses with no personal interest in the outcome of this application, I consider that the Tribunal can place significant weight on their evidence.  Their evidence is consistent with the applicant’s own evidence that she continued work until 19 December 2014. I find that the applicant continued to work for her Employer until 19 December 2014. 

21. In response to questions from the Tribunal, the applicant confirmed that Mr Sapkota had never told her that the business was in difficulty. 

22. The applicant said that when her subclass 186 visa was granted she was given a week of leave by Mr Sapkota to celebrate with her family. When she returned from leave, he notified her that the company was in difficulty and he could not continue to employ her. I accept the applicant’s evidence that she did not know the business was in liquidation prior to being terminated on 19 December 2014.

    Was there non-compliance as described in the s.107 notice?

23. As noted above, the non-compliance that was identified and particularised by the Department in the s.107 notice in this case was that the applicant failed to inform the department that she ceased employment with her nominating employer, Café Kathmandu, and that Café Kathmandu had ceased trading, three days prior to the grant of her subclass 186 visa. The notice stated that the Department had been advised by the liquidators that on 5 December 2014 Café Kathmandu was no longer trading. That is, it was no longer open as a restaurant, and therefore the visa holder was no longer working for them as a cook.

24. Actual knowledge is an implicit ingredient of s.104, such that the obligation imposed by s.104(1) is to inform an officer of the change in circumstances as soon as practicable after the non-citizen becomes aware of it. In Farah v MIAC (2011) 120 ALD 249, Jessup J stated at [12]:

    The event which triggers the operation of s 105(1) is the non-citizen becoming aware of the incorrectness of the answer, information or response referred to in paras (a)-(d). The event which triggers the operation of s 104(1) is the change in circumstances. In each case an officer must be informed, or notified, of the correct, or changed, position “as soon as practicable”. In the context of s 105, this clearly means as soon as practicable after the non-citizen becomes aware. In the context of s 104, at least in terms, this seems to mean as soon as practicable after the change in circumstances. However, the Minister accepted that actual knowledge was an implicit ingredient of s 104, such that the obligation imposed by subs (1) is to inform an officer of the change in circumstances as soon as practicable after the non-citizen becomes aware thereof.

25. As stated above, the applicant's evidence, which has been consistent from her response to the s.107 notice through to the hearing, was that she was not aware that the company had gone into liquidation until she received the cancellation notice, and that the restaurant in which she was working had continued to operate until at least 19 December 2014 when her employment was terminated. The evidence suggests that the restaurant continued to trade until CBRE (C) Pty Ltd, the landlord, locked it out on 11 February 2015, well beyond 5 December 2015. The Tribunal finds that the applicant was first made aware of her employer’s financial difficulties when she was terminated without notice on 19 December 2014. The applicant’s evidence is supported by the other evidence referred to above, and the Tribunal found her to be a credible and convincing witness.

26. The Department's statutory obligation is to provide all documents relevant to the review to the Tribunal. Under s.352(4) of the Act, the Secretary of the Department must, as soon as practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.

27. The decision record implies that the Department had evidence from the liquidators that by 5 December 2014 the restaurant in which the applicant was working was no longer trading. No such evidence has been provided to the Tribunal, notwithstanding the provisions of s.352(4). Equally, there is no evidence before the Tribunal that the applicant was otherwise aware that the company had gone into liquidation.

28. The applicant’s representative has provided the Tribunal with a copy of the Historical Company Extract for Café Kathmandu Pty Ltd, which indicates that ASIC records reflecting the court ordered winding up and appointment of a liquidator were updated on 11 December 2014.  In other words, the information was not yet publically available as at 8 December 2014 when the applicant’s visa was granted.

29. In Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; 12 ALJR 100; (1938) ALR 334, Dixon J stated:

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. The Tribunal notes that the cancellation of a permanent visa is decision which has serious consequences for the applicant and her husband.

2. Accordingly, the Tribunal is not prepared to rely on references in the delegate's decision to information the source of which has not been provided to it by the Department. The Tribunal is satisfied that in the absence of any documentary evidence to support the assertions contained in the Notice and repeated in the decision record of the delegate it should accept the evidence of the applicant, the witnesses, and the other documentary evidence referred to above.

3. This is the approach is consistent with High Court authority that the Tribunal must reach its conclusion by conducting its own, independent assessment and determination of the matters necessary to be addressed. In Shi v Migration Agents Regulatory Authority [2008] HCA 31 at 141, Kiefel J stated:

   The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed.

4. Accordingly, the Tribunal is not satisfied that the applicant was aware of the liquidation of Café Kathmandu Pty Ltd prior to the grant of her visa on 8 December 2014.

5. Further, there is no evidence before the Tribunal that the Maze at Carrara restaurant was not open and trading as at either 5 or 8 December 2014, or that the applicant ceased employment with Café Kathmandu Pty Ltd prior to that date as is stated in the s.107 notice. On the basis of the evidence of the applicant and the other material referred to above, the Tribunal is satisfied that the applicant continued to work as a Cook at the restaurant in Carrara until her employment was terminated on 19 December 2014.

6. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant's visa does not arise.

   Decision

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

8. The Tribunal has no jurisdiction with respect to the other applicant.

   Bridget Cullen
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the 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.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)      giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)      visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.