Kiranjeet Kaur (Migration)

[2017] AATA 586

Kiranjeet Kaur (Migration) [2017] AATA 586 (31 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Kiranjeet Kaur
Mr Gursharan Singh
Master Gurshant Singh Sandhu
Master Saibung Singh Sandhu

CASE NUMBER:  1614270

DIBP REFERENCE(S):  BCC2016/846711

MEMBER:Bruce Henry

DATE:31 March 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 31 March 2017 at 4:02pm

CATCHWORDS

Migration – Cancellation – Employer Nomination (Permanent) Visa – Subclass 186 (Employer Nomination Scheme) – Sponsor went into liquidation – Sponsor failed to inform Department or employees – Advice to Creditors not supplied to employees – Department’s findings of liquidation unsupported – Serious consequences of cancellation – Employment terminated five months after liquidation

LEGISLATION

Migration Act 1958, ss 5, 104, 107, 109, 140, 352

Migration Regulation 1994, Schedule 2 cl 186.223(4)

CASES

Farah v MIAC (2011) 120 ALD 249
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336;
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, prior to the nomination being approved on 16 February 2015 and her visa being granted on 9 March 2015 as the position for which she was nominated was no longer available. 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, the only decision that is before the Tribunal is that with respect to 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.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 applicants.

4. The applicants appeared before the Tribunal on 29 March 2017 to give evidence and present arguments. 

5. The applicants were represented in relation to the review by their registered migration agent.

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. 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.

8. 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.

9. 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

10. 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.

11. Documents before the Tribunal establish that the applicant came to Australia on 13 June 2008 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 Touch of India restaurant at Reedy Creek. She commenced working for the company in May 2012.

12. 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 09 October 2014 the visa holder lodged a subclass 186 visa application using the application form Application for Permanent Employer Sponsored or Nominated Visa.

    On 09 October 2014 Café Kathmandu Pty Ltd ATF Sapkota Family Trust lodged an Employment Nomination Scheme nomination with the department, nominating the visa holder in the occupation of Cook (ANZSCO 351411).

    Based on this information and meeting all other relevant criteria the employment nomination was approved on 16 February 2015.

    Based on this information and meeting all other relevant criteria, including that at subparagraph 186.223(4), which states:

    186.223(4) - The position is still available to the applicant.

    the subclass 186 Employer Nomination Scheme visa was granted on [9 March 2015].

    Advice of proposed deregistration and subsequent liquidation of Café Kathmandu:

    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’s annual registration fee. On 09 October 2014 – the day that the visa holder signed her employment contract and lodged her visa application – 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. That is, it was no longer open as a restaurant, and therefore the visa holder was no longer working for them as a cook.

    Consideration of evidence:

    It is apparent that from 12 August 2014 Café Kathmandu was no longer a viable company for the purpose of immigration sponsorship and that by 05 December 2014 there was no question as to whether this company was genuinely trading, as evidently it was not.

    The visa holder lodged her visa application on 09 October 2014 and identified Café Kathmandu as her sponsor. This sponsorship was approved by the department on 16 February 2015, as the department had not been made aware by either the visa holder or the sponsor that this company had ceased trading and that she were not working for them as a cook on her subclass 457 visa. Had the department been aware of this circumstance the nomination would most likely have been refused and the visa holder’s visa application would not have been approved.

    I consider that the information before me indicates that the visa holder has breached Section 104 of the Migration Act 1958 as she did not inform an officer of the department in writing of her change in circumstances prior to the grant of her subclass 186 visa. In particular, I consider that the visa holder has failed to inform the department that she ceased employment with Café Kathmandu prior to the sponsorship nomination being approved on 16 February 2015 and her subclass 186 Employer Nomination Scheme visa being granted on 09 March 2015 and as such the employment position was no longer available to her.

13. The delegate summarised the response to the Notice as follows:

    The visa holder has submitted the following reasons why she disputes that there was any non-compliance:

    -That she has fully complied with her visa conditions while working as a cook with Café Kathmandu for 2.5 years.

    -That she was unaware of the facts regarding the strike-off action against her employer and of the deregistration of the company.

    -That when the nomination and visa were approved she was unaware of the facts going on behind the scenes.

    -That she continued to be employed until 20 March 2015.

    -The visa holder’s former sponsor has submitted a declaration in which he states that he forgot the department about his company going into liquidation, and that he did not tell his employees either.

14. The departmental file contains a contract of employment between Café Kathmandu Pty Ltd ATF Sapkota Family Trust and the applicant. The contract is for the applicant to be employed as a Cook at the company’s premises at Reedy Creek in Queensland and is expressed to commence on 9 October 2014 for two years. The contract was signed by the applicant and Suresh Sapkota as Director of Café Kathmandu Pty Ltd on 9 October 2014.

15. As noted in the decision record above, this contract was signed on the same date as the application for a winding-up order for Café Kathmandu Pty Ltd was filed in the Federal Court in Brisbane by the Deputy Commissioner for Taxation.

16. The departmental file also contains a number of documents that appear to come from the liquidators of the business, Worrells Solvency and Forensic Accountants (Worrells), including a document headed ‘Advice to Creditors’ dated 9 December 2014. This document advises of the liquidation of Café Kathmandu Pty Ltd, and appears to be addressed to creditors of the company, including employees. It incorporates advice to employees on the government’s ‘Fair Entitlements Guarantee (FEG)’ for ‘employees with outstanding entitlements that become due because of employers becoming solvent’.

17. The Tribunal notes that there is no evidence before it that this ‘Advice to Creditors’ was sent to the applicant. There is also 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. That is, it was no longer open as a restaurant, and therefore the visa holder was no longer working for them as a cook’.

18. 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 shortly before the hearing she states:

    23.  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 .

    24.  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

    25.  . 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).

    26.  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.

    27.  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.

    28.  In response, I say that the allegation is not true and that the company's "Touch of India" restaurant had not ceased trading and that I continued working for my Employer as a cook until the termination of my employment on 20 March 2015 .

    29.  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.

    30.  I did not receive any letter or "circular to employees" from the liquidators advising of their appointment as liquidators of the company, or otherwise relating to my employment.

    31.  l continued to work in my position as a cook reporting to Suresh, or his brother, Mr Dhurba Sapkota (Dhurba).

    32.  I worked variously with a number of other staff rostered to work at the Reedy Creek site from time to time, including Manpreet Khanfura, Rupinderjit Chhina, Manpreet Brar and Sonia Kataria.

    33.  I would  usually be rostered to work during the day and would  be responsible for the  restaurant opening, preparation for lunch, managing the lunch service, and beginning preparation for dinner, amongst other things.

    34.  I was not responsible for the restaurant's takings or banking of the cash receipts of the restaurant which were managed by Dhurba. The restaurant also had an EFTPOS machine which was frequently used by customers.

    35.  The "Touch of India" restaurant catered largely to local customers, particularly for the lunch service.

    36.  I recall that during the period 5 December 2014 to 20 March 2015, a number of local customers came into the restaurant for lunch. ln addition, I would also interact with owners and staff of nearby businesses.

    37.  I have requested a number of "Touch of India" restaurant customers and nearby business people to provide letters confirming that l was working for my Employer as a cook.

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

    ·     An undated letter from Dr Max Po of Reedy Creek Medical and Acupuncture  Centre;

    ·     A letter from Nhu Achterberg of Reedy Creek Pharmacy dated 12 September 2016; and

    ·     A letter from Rebecca Bridge of Reedy Creek Veterinary Surgery dated 12 September 2016.

20. The writer of each of these letters states that they regularly ate meals prepared and served by the applicant there at the Touch of India Restaurant at Reedy Creek up to March 2015. Each of them was available to speak to the Tribunal during the hearing if necessary and provided a telephone number for that purpose.

21. At the hearing the applicant told the Tribunal that she had started working as a Cook at Café Kathmandu in Broadbeach in about May 2012. After about a year the owner, Mr Sapkota, asked her to work in his Touch of India takeaways at Robina and Pacific fair, also on the Gold Coast, from time to time. From October 2013 she also worked occasionally at the Touch of India Restaurant at Reedy Creek when required. She said that from about Christmas 2014 she was based at the restaurant at Reedy Creek.

22. The applicant said that she worked as a Cook throughout this time. She said that during 2014 Mr Sapkota told her and the other staff that they should deal with his accountant, Mr Bebawy, on all matters relating to their pay and work at the restaurant. For day to day matters about supplies and other management issues they dealt with Mr Sapkota’s brother, Dhurba. She had very little contact with the owner of the business from this time.

23. The applicant said that in October 2014 Mr Bebawy, who was also a migration agent, called her to his office to sign her employment contract and other documents for her application for permanent residence. She said that she did not speak to Mr Sapkota about this, as he had told her previously that Mr Bebawy would handle the matter. She told the Tribunal that at no time did anyone tell her that Café Kathmandu was in financial trouble, and that she saw nothing to indicate this at the restaurant. She said that business was not slow, and they had as many customers as usual. In response to questions from the Tribunal, she confirmed that neither Mr Sapkota nor Mr Bebawy had ever told her or the other staff that the business was in difficulty.

24. The Tribunal asked the applicant whether she had received the ‘Advice to Creditors’ dated 9 December 2014 from the liquidators. She was adamant that she had not received this document, and had not been aware that the company had been liquidated until she received the Notice from the Department about the cancellation of her visa.

25. The applicant said that when her subclass 186 visa was granted she telephoned Mr Sapkota and asked for leave so that she could celebrate with her family. He approved her leave. She said that while she was on leave she called him again about 20 March 2015 because she realised that her wages had not been paid. He then told her that the company was in difficulty and he could not continue to employ her.

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

26. 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 had failed to notify the Department that the company nominating her for her subclass visa had gone into liquidation and closed its business prior to the grant of the 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’.

27. 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.

28. As stated above, the applicant’s evidence, which has been consistent from the 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 that notice, and that the restaurant in which she was working had continued to operate until at least March 2015 when her employment was terminated. Her evidence is supported by the other evidence referred to above, and the Tribunal found her to be a credible and convincing witness.

29. 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.

30. 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 ‘Advice to Creditors’ document that appears on the departmental file was ever provided to the applicant, or that the applicant was otherwise aware that the company had gone into liquidation.

31. 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 family. 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 and the other documentary evidence referred to above.

2. 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.

3. 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 9 March 2015.

4. Further, there is no evidence before the Tribunal that the Touch of India restaurant was not open and trading as at 9 March 2015, 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 Reedy Creek until her employment was terminated on 20 March 2015.

5. 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

6. 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.

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

   Bruce Henry
   Member

   
   

   ATTACHMENT – Relevant Extracts from the Migration Act 1958:

   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.