Kaur (Migration)

[2022] AATA 2342

Kaur (Migration) [2022] AATA 2342 (2 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Amardeep Kaur Mr Amandeep Singh Mr Arnav Chhina

REPRESENTATIVE:  Mr Gurvinderjeet Singh Parmar (MARN: 1808842)

CASE NUMBER:  1928407

HOME AFFAIRS REFERENCE(S):           BCC2018/4013139

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 June 2022 at 3:07 pm (VIC time)

DATE OF WRITTEN RECORD:                14 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that that the primary applicant satisfies cl.489.211.

Statement made on 14 June 2022 at 6:26pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – false or misleading information and bogus document given with visa application – pay slips and period of employment – all wages paid, but irregularly –superannuation not paid, but pay slips show it was – applicant’s repeated requests to employer – power imbalance as visa holder – documents from employer and tax office given in good faith – members of family unit – child close to eligibility for citizenship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 489.211, 489.224, Schedule 4, cl 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 24 September 2019 to refuse to grant the visa applicants Skilled Regional Sponsored (Provisional) Subclass 489 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 2 June 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Ms Amardeep Kaur, you applied for a 489 Skilled Regional sponsored visa on 29 June 2018. On 24 September 2019 a delegate of the Minister made the decision to refuse your visa on the basis that he or she found you provided evidence in support of your application that created a breach of PIC 4020. There was no evidence that you had sought a waiver of PIC 4020 and consequently the delegate found you did not satisfy clause 489.211, which is a prerequisite for a grant of a 489 Skilled Regional Sponsored visa and refused your application.

1. You appealed that decision to be reviewed by this Tribunal and with your review application you provided a copy of the primary decision, which you told the Tribunal you had read and understood. I read from that decision today in considerable detail; I read most of it to you and it is apparent that you understand why the decision was made.

1. As I explained the role of the Tribunal is to conduct what is referred to as a ‘de novo’ hearing, which means I consider your case afresh and make a new decision about your eligibility for a visa. While it is my role to consider your case completely fresh, I must do so applying the same laws as those that were applied by the Department when they considered your application.

1. The question is whether you satisfy cl.489.211 in schedule 2 of the Migration Regulations, which provides that there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

1. In support of your application, you provided a range of documents and I will read from your decision record which states that in support of your application, you provided a Skills Assessment from VETASSESS dated 29 May. You have provided Notices of Assessment for the financial years ending 2014 to 2018. You provided PAYG payment summaries for the same period, which was the extent of your employment there. You provided a reference letter from someone called Simran, the manager of the restaurant, who stated that you worked there from December 2014 to January 2018. You provided payslips for that period. You provided Commonwealth Bank statements for the period of October 2014 to March 2018. You provided an undated letter on the business letterhead which stated that no superannuation contributions had been made. That letter was signed by Simran, the manager of the restaurant. You provided your tax office Notices of Assessment for the period of employment and the PAYG summaries.

1. The delegate was not satisfied with a couple of things.

1. Following your response to issues raised, you and your agent stated that the delegate was satisfied that the gross income for each year on the PAYG summary is consistent with the gross income on the payslips.

1. There was a question about holiday leave, which did not appear to change with each different pay period; it was explained as to how that was calculated, and the delegate was satisfied with the explanation.

1. There were a number of periods where you were not paid when the payment was due but catch-up payments were made in ensuing weeks.

1. In the decision it states that underpayment and catch up happened a few times – from the evidence available, the Tribunal finds it happened on many occasions and as the primary decision states, there were a few occasions where salary was deposited for two payment periods. However, the delegate is satisfied that the total amount of payments made reconcile with the group certificate provided. So the delegate accepted that the payments made meant you received all the pay you were entitled to for the period you worked.

1. It goes on to say:

   I find although the applicant was given the opportunity to comment, the supporting evidence provided has not adequately addressed all of the concerns. As evidence on the payslip, the applicant's net pay per fortnight was $1702.88. I find that the applicant has not provided an explanation for the different salary of $1712.88 shown on the Commonwealth Bank statement dated 23 May.

2. So the delegate found that for one pay period, you were overpaid by $10. I am surprised that one instance would have been of such concern, however you explained how that had happened and the fact that it had been remedied and the delegate accepted the explanation.

1. It goes through the fact that there were no salary deposits shown on the bank statement for six separate periods, and that led the delegate to say:

   Consequently, I am not satisfied with the agent's claim that the amount of payments made to the applicant reconcile with the group certificates.

2. There has subsequently been evidence provided that indicates you did receive all of your wages, despite the fact that they were not paid regularly as they should have been but were often late. As the delegate said:

   The evidence provided in the case - the evidence provided in the applicant's payment summaries were irregular on most occasions, and that is a statement of fact.

3. The delegate was concerned about the numbers on payslips referred to as cheque numbers. A letter was provided from the accountant that explained they were not cheque numbers but numbers randomly generated by MYOB, the accounting software they were using.

1. The delegate goes on to say that the evidence provided has not adequately addressed all concerns:

   I find concerns remain as to whether the applicant was employed as claimed by A1 Food and Catering Pty Ltd, trading as Curry Patta Indian Restaurant. I find the applicant has given false or misleading information to the Minister in relation to their claim of Australian employment as a cook in the form of payslips from December 2014 to January 2018, which contained information that is false or misleading in the terms of the remuneration and the period of employment.

2. It says that the evidence provided is material as it is the basis of your claim for Australian Skilled Employment Points under 489.224.

1. You have provided the Tribunal with a substantial volume of evidence. When I asked you at the start of today's hearing about what comments you would like to make, you said:

1. It's not my fault. It was the employer's duty to pay wages on time and to pay superannuation etcetra. I have a letter from the chef that says I worked there under that chef. There is a letter from the manager that confirms the dates that I worked there. I have provided Group Certificates and Payslips.

1. I believe the evidence provided clearly shows that your income reconciles with the group certificates, and that you were paid the salary you were entitled to for the period that you worked there, or the salary you had agreed upon for the three-year contract that you had with the employer for that period.

1. A major question that arises is around superannuation because the payslips show that superannuation was paid. The question for the Tribunal as raised by the delegate is whether you worked for Curry Patta restaurant as claimed for the required period.

1. From the documents provided including the letters from the chef and the manager and all the financial evidence provided the Tribunal is satisfied that you did work there in your nominated occupation for the period from December 2014 to January 2018.

1. Were you paid superannuation? The answer is no, you were not. However, what you provided were payslips that showed that superannuation had been paid.

1. It became apparent from your evidence to the Tribunal that you were working as a holder of a 457 visa for what I presume, was an Australian citizen and there was clearly a significant power imbalance between you the employee, and your employer. You expressed fears there would be recriminations if you pursued any issues or complaints against the owner because if he decided to terminate your employment, the ramifications for you and your family are most dire consequences in terms of your ongoing opportunity to remain in Australia, particularly given that you have a young son who was born in Australia 10 years ago tomorrow meaning that tomorrow he becomes eligible to apply for Australian citizenship.

1. Regarding your superannuation, you say you spoke to him repeatedly about your overdue pay and your superannuation. You say he was, and is a good bloke and told you that you would be paid everything you were owed in time but he had cashflow problems.

1. You say you were not aware of the extent of the superannuation issue because you did not have access to MyGov and while you suspected that like your pay it was overdue, you were unaware it was not paid at all. The documents you gave to the department were given to you having been prepared by the accountant.

1. There were a number of occasions where you were paid cash in hand rather than by deposit into your bank account, and I have got to say, that is a common occurrence in the hospitality industry, so I do not find that unusual. I do not find it unusual that there are times where you didn't get paid for a week or two after you were entitled to it because the business had cash flow problems. However, as you say, at the end of each period you pay was made up and at the end of the year you had almost been paid what you were entitled to and believed he would similarly make the superannuation payments.

1. Given the circumstances of the power imbalance that I mentioned and the fact that you are a visa holder concerned about what might happen if you pursue any issues against your

employer, it is understandable that you kept your head down and kept working not wishing to make any waves.

1. I do not believe there was ever any intention to commit any fraud. I do not believe there was any purposeful falsity on your behalf or on anyone's behalf and that you provided documents given to you that you believed were accurate.

1. It would appear that everyone was aware of the arrangements and believed the employer intended to make up the superannuation, and that you were unaware that it had not been paid anyway. The documents you provided do not satisfy the definition of bogus. They were provided to you by the tax office or your employer, and you provided them in good faith to the Department with your application.

1. Under those circumstances, I do not believe you have breached Public Interest Criteria 4020 and I therefore find that you meet clause 489.211.

1. Given those findings, it is the intention of this Tribunal to remit the matter to the Department for reconsideration with the direction that you satisfy 489.211.

1. Given that finding, it is also the recommendation of this Tribunal that the applications of the secondary applicants, your husband, Mr Amardeep Singh; and your son, Mr Arnav Cheena are also remitted for reconsideration.

1. So the Tribunal will remit this case to the Department with the direction that you as primary applicant satisfy cl.489.211.

DECISION

1. The Tribunal remits the decisions under review with the direction that the primary applicant satisfies cl.489.211.

Tim Connellan Member