Kaur (Migration)

[2022] AATA 3587

Kaur (Migration) [2022] AATA 3587 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaspreet Kaur
Mr Gurtej Singh

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2204957

HOME AFFAIRS REFERENCE(S):          BCC2021/2255354

MEMBER:Noelle Hossen

DATE:4 October 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 04 October 2022 at 3:21pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – position of Cook – applicant did not commence the nominated employment – genuine effort to commence the employment – two employers in the financial year – payment summary and amended tax assessment provided upon review – extortion threats – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 137Q, 348
Migration Regulations 1994, r 2.50

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 Home Affairs on 30 March 2022 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 137Q of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not commence employment referred to in the relevant employer nomination with TRIPLE C CATERING PTY LTD within the period prescribed in the regulations, as she was unable to satisfy the Minister that she had made a genuine effort to commence employment within the prescribed period, and the reasons for not cancelling the visa were not sufficient to outweigh the grounds for cancellation. 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. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 137T (1) of the Act. As no decision was involved in the visa cancellation under s 137T (1), the Tribunal has no jurisdiction with respect to the other applicants

4. The applicants appeared before the Tribunal on the 4 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review.

6. 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

7. 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 reg 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).

   Does the ground for cancellation exist (employment not commenced)

8. 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 reg 2.50AA.

9. The applicant’s evidence is that she did work for the employer during the year ending 2019.The applicant was nominated to work for TRIPLE C CATERING PTY LTD (Latitude 33) under the Regional Sponsored Migration Scheme (hereinafter referred to as RSMS) as a cook. The nomination was approved on the 12 February 2019 and the RSMS visa was granted on the 16 March 2019.The applicant was living onshore at the time and under the Regulations was required to commence work on the 16 September 2019.

10. The applicant through her agent provided a lengthy submission with several documents to support her case. The Tribunal has read all of the documents supplied and considered the evidence. The Department relied on information obtained from the Australian Taxation Office.

11. In her written submissions the applicant stated that she had filed her Income tax Return for the financial year ending 2019. She was under the impression that as she had worked for 2 employers in that financial year that she had to file 2 tax returns. She realised that she had made a mistake and sought the assistance of an accountant who lodged an Amended Tax Return on the 12 August 2019 including her income of $20,096 from Latitude 33 (the nominated employer). The accountant had chosen the wrong code for her main occupation. She supplied the PAYG payment summary for the Financial year ending 2019 to the Tribunal.

12. The applicant maintained at the hearing that she had amended her return to include further income received by her from the nominated employer in the financial year ending 2019. The Applicant did provide a copy of her amended tax assessment to the Tribunal. The date of the assessment was before the applicant received her Notice of Proposed Cancellation (NOPC) from the Department.

13. The documents supplied to the Tribunal were as follows:

    A submission

    PAYG summary from Latitude 33 for year ending 30 June 2019.

    Notice of Tax Assessments and Amended Notice of Tax Assessments

    Applicant’s Amended tax return for the year ending 30 June 2019 and 2020.

    Statutory Declaration from the applicant’s migration agent Rupinder Kaur

14. The Delegate relied on the information supplied by the Australian Taxation Office. At the time that the data was provided by the Australian Taxation Office the evidence was that the applicant’s employers had no PAYG data for either 2019 or 2020.

15. The applicant did provide a statement to the Tribunal being her PAYG data obtained from her employer that showed clearly that she had earned $20,096 in the financial year ending 2019. She also provided her income tax return(amended) that showed that she had earned the said sum. She also provided a Notice of Amended Assessment. She received a refund on lodgement of the Amended Income Tax Return.

16. The Tribunal accepts her evidence as the explantions provided to the Tribunal were plausible. The evidence provided to the Tribunal showed that the applicant had commenced employment at the nominated workplace within the time required pursuant to the Act.

17. In response to the NOPC the applicant claimed that her sponsor Mr Yorke had requested that she pay to him the sum of $20,000 for sponsoring the Visa. The Tribunal accepts her evidence as it was confirmed in the Statutory Declaration of her previous migration agent, Rupinder Kaur.

18. The Tribunal has sighted copies of text messages from Mr Yorke to the applicant and it does lead the Tribunal to the conclusion that the employer was trying to extort money from the applicant. She also had a note from Fair Work Australia to back up her claim that she had contacted them and did not pursue her claim as she was fearful of the consequences. She also provided copies of bank statement for the payments that she received for work done for her employer during the time that she worked for the company.

19. The totality of the oral and written evidence suggests that the applicant did work for the nominated employer during the financial year ending 2019 and did the best that she could to continue her employment with the nominated sponsor in spite of the threats for money to be paid to him.

20. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s 137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

    Noelle Hossen

    
    

    Member