Kaur (Migration)

[2017] AATA 1844

Kaur (Migration) [2017] AATA 1844 (27 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balbir Kaur
Mr Paramjeet Singh
Miss Simran Singh
Mr Amandeep Singh

CASE NUMBER:  1618388

DIBP REFERENCE(S):  BCC2016/3185763

MEMBER:Wan Shum

DATE:27 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 27 September 2017 at 10:19am

CATCHWORDS

Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Condition 8107 – Not employed in the occupation for which the applicant was nominated – Supervision of sales staff – Employment ceased – Disruption to children’s education – No further nomination

LEGISLATION

Migration Act 1958, s 116(1)(b), 140, 348, 359A

Migration Regulation 1994, Schedule 2

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 2 November 2016 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that that the visa did not comply with condition 8107 which was imposed on her visa. The other applicants’ visas were cancelled as a consequence by operation of s.140(1). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicants have sought review of the decision to cancel the visas and were represented in relation to the review by a registered migration agent. However, only the first named applicant’s visa cancellation can be reviewed by the Tribunal. 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 under s.348 of the Act with respect to them.

4. The first named applicant (the applicant) appeared before the Tribunal on 6 July 2017 to give evidence and present arguments. The third and fourth named applicants were also present.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

7. The applicant was granted the Subclass 457 visa on 23 March 2016, sponsored by Direction Employment & Training Ltd (the sponsor) to work in the nominated occupation of Customer Service Manager.  Condition 8107 was attached to the visa. It requires, among other things, that the visa holder work only in the occupation listed in the most recently approved nomination. On 13 June 2016, officers of the Department began monitoring the sponsor. An officer of the Department interviewed the applicant by phone on 21 July 2016. During the interview, the applicant had said that she undertook the following duties: taking phone calls; informing other staff if customers are coming in; informing other staff of customer location and the nature of their enquiry; arranging appointments for other areas; administrative assistance to the Chief Executive Officer, Ahmed Sokarno; and preparation of documents to assist Ahmed Sokarno prior to customer contact.

8. The applicant was sent a notice of intention to consider cancellation (NOICC) on 21 October 2016, on the basis that she was in breach of condition 8107. This was based on the view that the majority of her duties matched the position of receptionist. The applicant responded stating that she was a Customer Service Manager and not a receptionist. She said that, as her employment with Direction Employment & Training was terminated on 8 September 2016, she was looking for another job as a customer service manager. She further stated that her visa should not be cancelled as she had already complied with her visa conditions and the visa cancellation would put her future at risk and the significance of a cancellation on her family who she said were settled in Australia and had been living there for more than 12 years. The applicant also provided some payslips and numerous training survey forms as evidence of her work.

9. According to the applicant’s evidence at the hearing, she came to Australia in December 2009 and undertook a Certificate III and Diploma of Business. She and her family returned to India for around 1.5 years but her children were struggling because they were not familiar with the environment in India.

10. The applicant then obtained sponsorship for the Customer Service Manager role at Direction Employment & Training Ltd and returned to Australia with a Subclass 457 visa on 23 April 2016. She claims that she did not start work until 13 June 2016 because her former employer did not do any of the paperwork until then. The Tribunal notes that this is the date monitoring began of the former sponsor as set out in the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant.

11. She is currently working on a banana farm, as is her husband, packing bananas. She said her employers are really happy with her and provided a PAYG for FYE 30 June 2016 and some recent payslips from M&H Buchanan Labour Hire Services.

12. The applicant said that her visa should not be cancelled because she had complied with the conditions of her visa and she cannot ruin her children’s lives as they would suffer if they had to return to India. She has a daughter who is now in Year 11 and a son who is now in Year 6. She said that when they were back in India in the 2014 to 2016 period it was very difficult, she struggled to get them admitted into the schools there because they did not know the Indian language and they would not be able to study. However, she admitted when questioned further that at English language medium schools only one subject would be in the Indian language. She said her daughter was currently studying a Justice subject which she could not do in India. They are safe in Australia. She confirmed that her son was born in India and over the period of 12 years she claims to have been here, they have spent about 7 years outside of Australia. Her daughter told the Tribunal at hearing that they were not accepted into the schools in India so stayed at home for one year. She referred to the lack of support for single mothers in India who do not get anything whereas in Australia they can have access to the dole.

    Does the ground for cancellation exist?

13. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. As referred to above, condition 8107 applied to the applicant’s Subclass 457 visa and required that the applicant only work in the occupation for which the nominated was approved. There is no dispute that the most recent nomination in respect of the applicant was for the position of Customer Service Manager.

14. During an interview with an officer of the Department of Immigration conducted by telephone on 21 July 2016, the applicant had said that she undertook duties of an administrative nature such as taking phone calls, informing other staff when customers come in and of their location and the nature of their enquiry. The applicant claims that as she had only joined the company 6 weeks prior to the interview on 13 June 2016, which is the same date that monitoring began of the sponsor, she was still learning the policies and procedures of the company and the various departments. In her written response to the NOICC, she stated that she “implemented the policies and procedures required to successfully conduct customer service” and stated that she had sales representative and telemarketing team working under her direct supervision. However, at the hearing, when asked for an example of how she resolved problems for customers she said that one customer had deposited money into the bank but that it was not received in their bank account so she went to talk to the Commonwealth Bank. When asked about the survey forms, she said that she helped another employee Erica Lang, who was the GTO Manager, and that she had also helped a sales representative with language related matters when the sales representative was communicating with an Indian agent. The Tribunal does not accept that the applicant did supervise any staff as claimed in her written responses as she has not provided any details which reflect this kind of responsibility. In respect of the customer survey forms she provided to the Department as evidence of her duties, when asked what she did with the surveys at the hearing, she told Tribunal that her job was to handout the surveys. She said that she did what Erica Lang told her to do. It appears to the Tribunal that she did not assess or monitor customer satisfaction and the Tribunal considers that handing out surveys does not reflect any of the tasks as set out in the ANZSCO classification for Customer Service Manager.

15. The Tribunal notes the period of employment with the sponsor was short. The applicant said at the hearing that she worked there from 13 June 2016 to 30 August 2016. This is a period of 11 weeks in total. In relation to her termination, she said she was shocked and surprised by this and that no reasons were given. She thought perhaps it may have been because someone had heard her speaking to another employee when she had said that she was not happy and not satisfied with the job.

16. As evidence of her employment, the payslips provided by the applicant from the sponsor indicate that she was paid on two dates, 1 August 2016 and 3 August 2016 for a period of 6 weeks from 20 June 2016 to 29 July 2016. The Tribunal informed the applicant at the hearing, and wrote to her pursuant to s.359A, about information provided by Direction Employment & Training Limited to the tribunal (differently constituted) for another case, being a Wage Reconciliation Report for the financial year ending 30 June 2016 which did not include the applicant’s name as an employee. In response, the applicant claimed that she only received one salary payment into her account in the 2016 financial year. As she claims a payment was made in the 2016 financial year, her name should appear on the reconciliation report even if there was only one payment. The applicant has provided two PAYG payment summaries from Direction Employment & Training Limited, one for the financial year ended 30 June 2016 showing gross payments of $1,057 and one for FYE 30 June 2017 with gross payments of $6,840. Both of these appear to have been issued on 27 July 2017, after the hearing. The total gross payment is $7,897. However, this is not consistent with the gross payments in the PAYG payment summaries having regard to the payslips previously provided to the department indicating that her weekly gross pay was $1,058. The total gross payments, for an 11 week period, should have totalled $11,638 over the two financial years. In addition, her claim to have been paid in the FYE 30 June 2016 is not reflected in the payslips she had earlier provided to the department as the first date of payment is 1 August 2016. While there appear to be documents indicating that she was paid an amount as salary by Direction Employment & Training Limited, the Tribunal has significant doubts about the nature of her employment with Direction Employment & Training Limited.

17. The Tribunal informed the applicant at the hearing that an anonymous allegation was received by the Department of Immigration on 12 December 2016 stating that she had paid $60,000 to her employer for the Subclass 457 visa. It also stated that she was not working with the sponsored business and living with family in Cairns, with her husband Paramjeet Singh and two children. It further stated that she was working cash in hand on farms in Innisfail, Cairns, and would go to the office 1 or 2 days “once in couple of month”. The allegation states her name, date of birth and provided a passport number.

18. In response to this information which was set out in the s.359A letter, the applicant refuted the allegation that she had paid $60,000 to her sponsor and said that she got the job because of her skills and qualifications. She thought that it was likely her niece had been the source of the allegation. She claims that there was a familial dispute regarding money and provided some screenshots of mobile text messages which her daughter, the third named applicant, had received seeking the return of money that had been lent to them from her niece. The applicant referred to the date of the allegation and said that her visa had already been cancelled then and she was not working anywhere because she knew that working without work rights is a crime. Given the allegation was about two months after the visa was cancelled, the applicant’s employment had been terminated already, and there is nothing before the Tribunal to substantiate the claim of there being a payment for the visa, it is not placing any weight on the allegation in reaching a finding as to whether there was a breach of condition 8107.

19. The applicant was present at the offices for the telephone interview with the department and there is evidence of payslips and PAYG summaries issued (albeit in July 2017) to support a claim that she was paid by Direction Employment & Training in June to around August or September 2016. Given this, the Tribunal is prepared to accept that she was employed by the sponsor for a short period. In relation to whether she worked in the occupation of Customer Service Manager, the Tribunal has considered the applicant’s evidence and has also had regard to information given by the sponsor during monitoring which commenced shortly before the applicant’s claimed first day of work. It notes that the sponsor claimed that he had fulfilled his employer obligations and stated that the applicant had been employed as a customer service manager and her duties were in line with that occupation. Despite this, the applicant’s evidence at the hearing and in response to the telephone interview fail to demonstrate that her duties were consistent with those of a Customer Service Manager. The Tribunal does not accept that the applicant did “plan, administer and review customer services… and maintain sound customer relations” as described in ANZSCO for that occupation. The Tribunal has taken into consideration that she had only begun employment 6 weeks prior to the phone interview with the departmental officer and accepts that there would be a need to become familiar with the business, but considers that she would have carried out at least some of the duties of a Customer Service Manager if she was employed in that role and had the skills and qualifications to do so as claimed. Having considered the applicant’s evidence of her duties during her employment and the duties of a Customer Service Manager as set out in ANZSCO, the Tribunal is not persuaded that the applicant had been undertaking the duties of a Customer Service Manager and concludes that the applicant did not work in the occupation for which the most recent nomination was approved.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

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

22. In considering whether the visa should remain cancelled, the Tribunal has had regard to the type of visa which was held by the applicant. The Subclass 457 visa is a temporary visa to address skills shortages in the labour market in Australia and is based on being sponsored and nominated for a particular occupation. The applicant was nominated for the occupation of Customer Service Manager. While the applicant is currently working, she is packing bananas and not employed in the occupation for which she had been nominated for the Subclass 457 visa. Based on the applicant’s evidence as to her duties with the former sponsor, and her current employment, the Tribunal does not consider that the purpose of her travel to Australia was to engage in employment as a Customer Service Manager. It appears to the Tribunal that the purpose of the applicant’s travel to Australia is so that the family could attempt to settle here, and it was not to work for the sponsor and carry out the occupation for which she was nominated. This view is supported by the letter dated 15 August 2017 from The Honourable Bob Katter MP in which he states that the applicant “has continuously sought legal ways to bring her family to Australia for a better life… trying to give her family a better way of life in Australia”.

23. The Tribunal has found above that she did not comply with condition 8107. There is no evidence before the Tribunal of her failure to comply with any other visa conditions. There is nothing to suggest that the applicant’s behaviour towards the department would impact on the cancellation decision.

24. The applicant’s husband and two children were granted Subclass 457 visas as members of her family. They have had their visas cancelled under s.140. The impact of this is that all members of the family no longer hold substantive visas and they all have the same visa status. They hold bridging visa Es so they will not be detained as a consequence of a visa cancellation so long as they depart Australia before that visa expires. While they may be required to depart Australia if their visas remain cancelled, this does not warrant setting aside the cancellation.

25. The Tribunal accepts that the family do not wish to return to India and that the preference is for the children to finish their schooling in Australia. The Tribunal does not accept, however, the claim that it is not possible for the children to study in India and it has doubts that they did not attend school during their most recent return to India. It notes that there was no claim that the applicant’s children were required to repeat a year of school on return to Australia. While the standard of education that can be achieved may differ between the countries, the school system in India is structured and tertiary education is also available. The tribunal notes that the letter from MP Katter refers to their safety being compromised because of their “Sikh religion and Australian education”. No further details have been put forward and the Tribunal does not consider on the material provided that there is any evidence of an issue with their safety for the reasons set out above. It notes that the applicant has not provided any details of safety related incidents when her family returned to India in 2015 to 2016. The applicant’s daughter referred to single mothers not having support in India, whereas they would be able to access the dole in Australia. Even if this were the case, there is no indication that the applicant or her daughter or any other member of the family unit would be a single mother as a result of the cancellation of their visas. The Tribunal does not consider there is any persuasive evidence before it to indicate that Australia would breach any international obligations in relation to the applicant and her family.

1. The applicant states that the cancellation is a “life changing event” for the family. The Tribunal accepts that there may be a degree of hardship as a consequence of the cancellation which will likely mean having to leave Australia and having to re-adjust to life in India. However, it notes that despite claiming to have lived her for the past 12 to 13 years, the family have split their time between Australia and India over that period, with a slightly greater period of time being spent outside Australia. The Tribunal has also had regard to the letter provided from the Honourable Bob Katter MP addressed to the Minister. It notes his view that the applicant should be given an opportunity to meet the legislative requirements if a new sponsor can be found in the immediate future.  However, no evidence of a new sponsor was provided to the Tribunal. It has taken into account the potential hardship the family would experience from having to leave Australia but notes that they have only returned to Australia in April last year.

2. The Tribunal has considered all of the oral evidence and the written material provided by the applicant in relation to the cancellation. Overall the Tribunal gives weight to the fact that the applicant did not undertake the duties of a Customer Service Manager at Direction Employment & Training Ltd, and notes that it is claimed that she did not commence employment there until over 6 weeks after her arrival in Australia when monitoring of the sponsor began. It accepts that the applicant is now working packing bananas on a farm in Innisfail, but this is not in the occupation for which her visa was granted. Despite the applicant’s claim to have the skills and qualifications to be a Customer Service Manager, she has not provided any evidence that she has been offered a job in this occupation. This is the occupation for which the Subclass 457 visa, which is a temporary visa to address immediate skills shortages in the labour market in Australia, was granted. The Tribunal has taken into account that the cancellation of the visas affects four individuals; however it does not consider that the claimed difficulties that may arise in returning to their country of nationality, India, as a consequence of the cancellations outweighs the reasons for cancelling the visa.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

   Wan Shum
   Member