Ozturk (Migration)

[2019] AATA 607

Ozturk (Migration) [2019] AATA 607 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yavuz Ozturk
Mrs Rebecca Gayle Ozturk
Master Yavuz George Ozturk
Miss Leyla Emine Ozturk
Master Jasper Evrim Ozturk

CASE NUMBER:  1728600

HOME AFFAIRS REFERENCE(S):           BCC2017/3315168

MEMBER:Jennifer Cripps Watts

DATE:25 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 25 February 2019 at 5:05pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – Condition 8107 – commenced employment with sponsor  – business dispute among directors of sponsor – evidence of wages deposited into bank account – ATO notice of assessment – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 13 November 2017 made by a delegate of the Minister for Immigration and Border Protection 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 they formed the view that the applicant had not complied with a condition of the visa, the ground was made out, and the ground for cancelling the visa outweighed the grounds for not cancelling the visa. 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 the decision with respect to the first named applicant. 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 with respect to them.

4. The applicants appeared before the Tribunal on 8 October 2018 to give evidence and present arguments.  Section 359AA matters were put to the applicant at the hearing, he requested time to provide post-hearing response or comment.  A response in writing was received by the Tribunal together with a request for another hearing.  The request was granted and a second hearing was scheduled and held on 8 January 2019 at 10:00am Sydney time to allow for the time difference between Australia and USA (Florida, where the applicants currently live).  It was early evening in the USA.  The applicant and his wife gave their evidence by phone.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended both the Tribunal hearings.  The firm is Parish Patience.  The migration agent with carriage of the applicant’s matter up to the time the visa was cancelled has now left the firm.  Another migration agent, Mr Dougall, has taken over the applicant’s matter and attended the Tribunal hearings.

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.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.

8. The delegate sent a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa to the applicant’s migration agent on 25 October 2017.  The reason was that it appeared the applicant had breached condition 8107 of his visa because he had not commenced work with the sponsor within 90 days of the visa being granted.  The Department informed the applicant that it had received information that he had never commenced employment with the most recently approved sponsor, H Salem & I Vardar & D Yilmaz (the sponsor) working at Gabby’s Cafe.  The applicant was given an opportunity to respond or comment.  In the NOICC he was informed that he should provide a response within five working days of having received the NOICC and that he may ask for a five day extension of time.

9. The applicant’s migration agent responded to the NOICC on 7 November 2017.  They advised that the applicant had instructed them to request a five day extension of time to provide a response.  The request was granted.  While there was a response to the NOICC, it was not received until after the delegate had made a decision to refuse the visa.  Referring to the response, the Tribunal can see that it had been sent to an invalid email address prior to the decision being made and within the extended timeframe, by the applicant’s migration agent and was not therefore received by the Department by the deadline.  No response was received for this reason and, justifiably in the Tribunal’s view, the delegate made a decision on the information they had before them. 

10. The applicant was properly notified of the cancellation on 13 November 2017.  On the same date, shortly after receiving the cancellation notification, the applicant’s migration agent emailed the Department saying that he had sent a response to the NOICC on 7 November 2017.  He enclosed the 7 November 2017 email and attachments that had been sent to [email protected], an invalid address.  Notwithstanding that the email address on the submissions on the firm’s letterhead was the correct one, [email protected] (no ‘s’ after cancellation), the email had been sent to the wrong address with the ‘s’.

11. An officer of the Department responded to the 13 November 2017 email and informed the applicant’s migration agent that the 7 November 2017 email in response to the NOICC was not received because he had sent it to the wrong email address.

12. When reviewing the applicant’s visa cancellation, the Tribunal has had regard to the email and attachments that the applicant intended to provide to the Department on 7 November 2017, which are now on the file, together with additional documents that have been provided, including the migration agent’s submissions, and the applicant and his wife’s oral evidence and any relevant facts or matters going to whether the applicant breached condition 8107.

13. Two hearings were held, the second at the request of the applicant after matters were put to him under s.359AA of the Act, the details and relevance of which is discussed later.  The applicant gave evidence at the first hearing and the applicant and his wife, a secondary applicant, both gave oral evidence at the second.  Their migration agent provided written submissions and gave brief oral submissions at the hearings.  The applicant and his wife both provided written statements.  They were considered to be credible witnesses who gave spontaneous and cogent evidence.  Their versions of events relating to the question of whether or not the applicant commenced employment with the sponsor within 90 days of the grant of the visa were largely consistent.

14. The applicant was granted a Subclass 457 visa on 2 December 2016.  He was sponsored by H Salem & I Vadar & D Yilmaz (sponsor), which was a partnership between Mr Davut Yilmaz and two other directors who were silent partners.  The applicant claims he commenced work for the sponsor on 5 December 2016 and that the sponsor paid his wages from that time.  He says he was paid fortnightly in cash, but sometimes this varied, and he did not feel that he was in a position to request that he be paid in a more formal or regular manner.  He was given a PAYG Summary for the 2016/2017 financial year and lodged a tax return.  An Assessment from the Australian Taxation Office has been provided verifying this.

15. The Tribunal accepts that the applicant was dealing with Mr Yilmaz, who he had known for some years, and not the other directors of the sponsor during the claimed employment period from December 2016 to August 2017, and that it was Mr Yilmaz who paid his salary to him in cash.

16. The applicant says that after working for the sponsor for seven or eight months, from December 2016 to August 2017, a dispute occurred  between the three partners in the business that had sponsored him and the two silent partners sought to expel Mr Yilmaz amidst allegations of fraud between them.  It is suggested that the two silent partners, because they thought the sponsorship documents for the applicant were signed without their knowledge, took ‘active steps’ to prevent the applicant working for them.  His employment was terminated on 14 August 2017, which meant that to remain compliant with his Subclass 457 visa conditions he needed to find a new employer/sponsor by 13 October 2017.  He secured employment with Yehliu Pty Ltd trading as Mamasan in Surry Hills (Yehliu), Sydney who, at the time the NOICC was received, were preparing to nominate him.  On 25 October 2017, the applicant received the NOICC for breach of condition 8107.

17. The applicant has provided bank statements and the 2016/2017 tax documents referred to above in support of his claim that he commenced employment with the sponsor, compliant with his visa conditions.

18. Although not claiming to have forensically examined them, the Tribunal has had regard to the Commonwealth bank statements in the applicants’ joint names that was provided in response to the NOICC and can see, for example, that entries include some titled ‘paycheck’ and some ‘cash deposit’:

    Paycheck – total  Cash deposit - total

    1. December 2016  None  $12,450 (3 deposits)
    2. January 2017  $  2,000 (1 deposit)                $  6,370 (9 deposits)
    3. February 2017  $  5,600 (5 deposits)              $  3,480 (2 deposits)
    4. March 2017  $  5,450 (11 deposits)            $  4,362 (7 deposits)
    5. April 2017  $  8,250 (9 deposits)              $  1,590 (2 deposits)
    6. May 2017  $  1,060 (4 deposits)              $10,700 (11 deposits)
    7. June 2017  $  1,050 (7 deposits)              $12,088 (12 deposits)

19. The applicant says he was paid in cash fortnightly, and sometimes weekly, and he sometimes deposited wages he was paid in cash into the bank account.  It is not, in the Tribunal’s view, entirely clear what portion of the cash deposits were wages or profit sharing.  However, the Tribunal is prepared to accept that the applicant was paid wages and, on that basis, it is a reasonable conclusion to draw that, if he was being paid wages by the sponsor, that he was working for the sponsor as he claims and that he commenced working there in or around December 2016.

20. The Tribunal, in reaching this conclusion, has also had regard to the taxation estimate for the year ended June 2017, PAYG payment summary for the year ended 30 June 2017 and ATO notice of assessment for 2017 that were provided by the applicant, all indicating he had worked for the sponsor.

21. The Tribunal accepts that the applicant’s inability to provide payslips was caused by sponsor, Mr Yilmaz, not keeping proper records and paying staff in cash in a fairly random manner.  There were three partners in the business at the time, two were silent and one, Mr Davut Yilmaz, was solely in charge of the day to day running of the business.

22. The Tribunal is satisfied that the applicant was employed by the sponsor up to 14 August 2017.  The applicant has provided the Tribunal with evidence that, on 6 December 2017, a nomination application was made by a standard business sponsor Yehliu (20 May 2016 to 20 May 2021) identifying the applicant in the occupation of Chef (ANZSCO 351311), working full-time in Surry Hills.  An employment contract was provided setting out the terms and conditions of proposed employment.  The Tribunal was provided with a copy of the approval notice for Yehliu dated 8 October 2018.

    Does the ground for cancellation exist?

23. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(aa)(i) attached to the applicant’s visa. This condition requires the applicant, if he was in Australia when the visa was granted, to commence work within 90 days after the visa grant and, if he ceases that employment, the period during which employment has ceased must not be more than 60 days.

24. The applicant has provided evidence that Mr Yilmaz ran the business, with two other partners who were silent partners, until around August 2017.  Evidence before the Tribunal suggests the silent partners were largely ignorant of Mr Yilmaz’s questionable dealings concerning the business until August 2017.   It is submitted that Mr Yilmaz, due to his shareholding status, was able and entitled to make significant business decisions without consulting or gaining the approval of the other shareholders.   The applicant and his wife say that they became aware (at some point) that Mr Yilmaz had failed to pay business taxes and that council rates were in arrears.  They say that Mr Yilmaz did not pay electricity bills.

25. A picture has been painted by the applicant of Mr Yilmaz being a poor businessman who ran the companies he was in charge of into significant debt and someone who did not attend to paperwork relating to the business in a responsible way, or pay bills on time.   In addition, the Tribunal was told that the applicants had a 25 percent share in the business Bondi Fresh with Mr Yilmaz and that they are now aware that Mr Yilmaz has, without the applicants’ authority and without any payment to them, removed them as shareholders.  The Tribunal accepts this.

26. In the hearing response to the first invitation to attend a scheduled hearing, the applicant indicated that Mr Yilmaz would attend to give oral evidence.  He did not attend.  The applicant was asked at the second hearing if he was aware why Mr Yilmaz had not attended the first hearing to give oral evidence.  The applicant said it was because, essentially, Mr Yilmaz does a lot of his business with cash payments and he did not want to come forward in the present matter for that reason.  The Tribunal sought to clarify this by asking if it was because he didn’t want to bring attention to himself and the applicant responded in the affirmative.  The Tribunal accepts this as the reason why Mr Yilmaz did not attend the hearing to give oral evidence. 

    Section 359AA – first hearing

27. A s.375A certificate, which the Tribunal considers to be a valid certificate, applying to folios in the Department file was shown to the applicant and he was invited to comment on its validity and the contents of the folios, which were given to him.  The matters put under s.359AA at the first hearing related, essentially, to a ‘dob-in’ by one of the silent directors (not Mr Yilmaz) who said that the applicant had not worked for the sponsor.  The Tribunal has accepted that Mr Yilmaz was solely in charge of the day to day running of the business, at least up until August 2017.  The Tribunal’s view is that the silent partner who sent the ‘dob-in’ was not involved in the day to day running of the business and cannot therefore reliably say one way or the other whether the applicant worked for the sponsor from 5 December 2016.  For this reason, the information in the email that is the subject of the s.375A certificate is not considered to be reliable and no weight is given to it.

28. In the written response to the s.359AA matters put at the hearing received on 23 October 2018, the applicant requested that they also be given an opportunity to attend a second hearing.  One was scheduled, taking into account the member’s availability and the Christmas period, on 8 January 2019.

29. The Tribunal has now had the benefit of considering evidence that was not before the delegate, including the NOICC response that was not sent to the right email address, additional documentary evidence provided to the Tribunal, the oral evidence of the applicant and his wife and also the further written submissions of the migration agent.

30. On the evidence and for the reasons given, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Jennifer Cripps Watts
    Member