PATEL (Migration)

[2019] AATA 1427

PATEL (Migration) [2019] AATA 1427 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rajendrakumar Jethalal Patel
Mrs Mamtaben Patel

CASE NUMBER:  1807804

HOME AFFAIRS REFERENCE(S):           BCC2015/1837671

MEMBER:K. Chapman

DATE:3 January 2019

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 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 03 January 2019 at 7:02pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – genuinely engaging in employment with the nominated employer – sponsor offered applicant to purchase business – employment terminated within 2 years – new business venture outside of a regional area – Australian citizen child – Convention on the Rights of the Child – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 137, 348, 359, 376
Migration Regulations 1994, r 2.50

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362    

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 and Border Protection on 16 June 2016 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa on the basis of being unsatisfied that the first named applicant made a genuine effort to be engaged in employment with R & C Brothers Pty Ltd, trading as ‘Just 4 Gossip Café’, in a regional area for the required employment period of two years. 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 (hereafter ‘the applicant’). The visa of the second named applicant was automatically cancelled as a consequence of the aforementioned 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 latter visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. On 18 October 2016, the Tribunal (differently constituted) affirmed the decision to refuse the grant of the visa: AAT reference 1609132. The applicant subsequently applied to the Federal Circuit Court of Australia for judicial review. On 14 March 2018, the Court made orders by consent remitting the matter to the Tribunal on the basis that the existence of a non-disclosure certificate had not been disclosed to the applicant.

5. On 14 August 2018, the Tribunal (presently constituted) wrote to the applicant pursuant to s.359A of the Act inviting him to comment on or respond to information contained in the Departmental file alleging that he departed his claimed employment as a Café/Restaurant Manager in Just 4 Gossip Café shortly after gaining Permanent Residence, that in July 2014 he transferred 80% of his shares in R & C Brothers Pty Ltd to Mr Chetankumar Patel and Mrs Ruchi Patel who subsequently opened the Tulsi Indian Restaurant using the same ABN as the café and using an adjacent premises, that he had no involvement in the Tulsi Indian Restaurant, and that R & C Brothers Pty Ltd sponsored another person for the same position. The Tribunal’s correspondence advised the aforementioned material is covered by a Certificate pursuant to s.376 of the Act dated 5 July 2016, that it had exercised its discretion to release the material to him, and that he may make submissions on the validity of the Certificate if he wished to do so.

6. Following the request for, and grant of, an extension of time to respond to the above correspondence of the Tribunal, on 18 September 2018 the applicant provided a response including written submissions, a statement from him and an offer of employment in Australia authorised by Mr Rajendrakumar Patel of The Green Miner Pty Ltd. The aforementioned material has been duly considered by the Tribunal.

7. The applicants appeared before the Tribunal by telephone on 8 November 2018 to give evidence and present arguments (for completeness the Tribunal notes that a postponement request concerning an earlier listed hearing was granted). The Tribunal also received oral evidence in person from Mr Rajankumar Patel, a prospective employer of the first named applicant who is not related by family to him. The applicants were represented in relation to the review by their registered migration agent. The Tribunal received additional written submissions and taxation information at the review hearing. On 19 November 2018, the Tribunal also received further written submissions. The aforementioned material has been duly considered by the Tribunal.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the visa of the applicant should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 r.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).

10. At the review hearing the Tribunal explained its role and the purpose of the hearing. The Tribunal informed the applicant that his visa was cancelled under s.137Q(2) of the Act as the delegate concluded he did not make a genuine effort to be engaged in employment with R & C Brothers Pty Ltd, trading as Just 4 Gossip Café, in a regional area for the required employment period of two years. The Tribunal explained to the applicant that, if satisfied the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. The evidence of the applicant before the Tribunal may be summarised as follows. He contends that he gained employment in late 2012 at the Just 4 Gossip Café in Landsborough, Queensland after the then owner ‘Barbara’ placed an advertisement seeking staff. Apparently after a few weeks of working for Barbara the applicant agreed with her to purchase the business. The applicant established the company R & C Brothers Pty Ltd for that purpose. He formally owned 80% of the shares with a Mr Chetan Patel owning the remaining 20%. The latter had experience as a chef in an Indian restaurant and the two agreed the applicant would run the front of house at the café.

12. The applicant was granted the Subclass 187 visa on 13 June 2014 based upon the nomination of R & C Brothers Pty Ltd for him to work in the position of Café/Restaurant Manager. The applicant advised the Tribunal in oral evidence that whilst formally the shares in R & C Brothers Pty Ltd were owned 80% by him and 20% by Mr Chetan Patel, in actuality there were owned on a 50% each basis. The applicant conceded that neither of them advised Australian Government authorities of the alleged actual position, ostensibly because they had a good relationship with each other and in their view there was no need to make such a notification. When questioned by the Tribunal on when his ownership interest in R & C Brothers Pty Ltd ceased, the applicant advised that Mr Chetan Patel pressured him to sell his shares in July 2014. The applicant explained that in August 2014 he and his wife travelled to India to check on members of his family who were apparently injured in a car accident.

13. The applicant provided inconsistent explanations regarding whether he had ceased employment with R & C Brothers Pty Ltd at the time he went to India in August 2014. On one version he ceased employment prior to that trip, on another he was still employed until returning to Australia in November 2014 at which point Mr Chetan Patel terminated his services due to alleged unfavourable trading conditions caused by competition from a new bakery. The Tribunal notes that the contention of the applicant regarding his alleged prior ‘actual’ ownership interest of 50% in R & C Brothers Pty Ltd conflicts with documentary evidence indicating he held 80% of the shares. Following careful consideration, the Tribunal finds that the applicant provided untruthful evidence regarding the aforementioned matters given the inconsistencies in his evidence.

14. The applicant advised the Tribunal that following the termination of his employment with R & C Brothers Pty Ltd he sought other opportunities and ultimately established a ‘7/11’ business with three other individuals. This business was located outside of a regional area for the purposes of the Subclass 187 visa. The Tribunal notes that none of the oral evidence of the second named applicant or the additional witness, Mr Rajankumar Patel, advanced support for the applicant’s contentions regarding his ownership interest in R and C Brothers Pty Ltd or those regarding his duration of employment with that company.

    Does the ground for cancellation exist?

15. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

16. Following careful consideration, the Tribunal finds that the applicant’s employment with R and C Brothers Pty Ltd was terminated within two years of his commencing such employment. For completeness, the Tribunal expresses its view that the applicant and Mr Chetan Patel participated in a contrivance utilising R and C Brothers Pty Ltd in order for the former to obtain the Subclass 187 visa. Having careful regard to the evidence, the Tribunal does not accept that the applicant’s employment was terminated by R and C Brothers Pty Ltd due to poor financial circumstances arising from the arrival of a new competitor. This is because of the lack of credibility of the applicant’s evidence regarding this matter. On balance, the Tribunal finds that the applicant did not make a genuine effort to be engaged in employment with R and C Brothers Pty Ltd for the required employment period of two years.

17. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

    Should the visa be cancelled?

18. There are no matters specified in the Act or Regulations that must be considered in relation to the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual ‘PAM3: Act - Visa cancellation instructions - Regional sponsored employment visas’.

19. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

20. The applicant’s background has been detailed above. He obtained the Subclass 187 visa on 13 June 2018, divested his interest in R and C Brothers Pty Ltd in July 2014, and ceased employment with the aforementioned company in August 2014 when he returned to India. He then engaged in a contrivance with Mr Chetan Patel to suggest his employment was terminated in December 2014 due to poor business circumstances. The applicant then became involved in a new business venture outside of a regional area for the purposes of the Subclass 187 visa.

21. The applicant and the second named applicant had a child together who was born in Brisbane on 15 December 2015. Given that his parents both held Australian permanent residence at the time of his birth, that child acquired Australian citizenship at birth. The applicant’s visa was cancelled on 16 June 2016 and he departed Australia with the second named applicant and their Australian citizen son on 11 January 2018. They currently reside in India and gave oral evidence by telephone to the Tribunal from that location. In summary, the applicant and second named applicant gave oral evidence indicating that their Australian citizen son’s best interests were met in their own Subclass 187 visas being restored and them returning together as a family unit to Australia. They contend that life is more difficult for their son in India and that his educational opportunities are more limited than in Australia. Submissions from their representative contend that the interests of the Australian citizen child outweigh other considerations in favour of visa cancellation. It is contended by all witnesses that the applicant has employment awaiting him in a regional location in Australia and that its duration will be of at least two years.

22. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 187 visa is to work in a regional area for at least two years in the position of Café/Restaurant Manager. For reasons previously expressed, the Tribunal does not accept that the applicant maintained such employment for the necessary duration or that he made a genuine effort to do so. The Tribunal considers it a matter of significance that the applicant did not make a genuine effort to fulfil his responsibilities as a Subclass 187 visa holder. Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s Subclass 187 visa. Notwithstanding the aforementioned finding, there is no evidence before the Tribunal that the applicant has failed to comply with any other visa conditions. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs neither in favour of, nor against, cancellation of his Subclass 187 visa.

23. The Tribunal has also had regard to the circumstances of the visa cancellation. The ground for cancellation arose as the applicant did not make a genuine effort to maintain employment with R and C Brothers Pty Ltd, trading as Just 4 Gossip Café, for the required period. Rather, he engaged in a contrivance to suggest his employment was terminated for reasons beyond his control. On balance, the Tribunal finds that the circumstances in which the ground for visa cancellation arose weigh strongly in favour of cancelling the applicant’s Subclass 187 visa given they are attributable to his dishonest conduct. Regarding the applicant’s past and present conduct towards the Department, the Tribunal considers that the applicant provided untruthful information to them in connection with the reasons for the cessation of his employment with R and C Brothers Pty Ltd. The Tribunal finds that this circumstance weighs strongly in favour of cancelling his Subclass 187 visa.

24. The Tribunal notes that the visa of the applicant’s wife will be consequentially cancelled pursuant to s.137T of the Act if his visa is cancelled. However, the visa of the second named applicant was granted on the basis of her being a member of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. The Tribunal notes that the applicant and second named applicant currently reside together with their son as a family unit in India. Following careful consideration, the Tribunal finds that the consequential cancellation of the second named applicant’s visa weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

25. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant and his wife do not hold valid visas whilst in Australia they would be unlawful non-citizens and subject to immigration detention, it would be difficult for them to make further visa applications in Australia and they would be liable to removal from Australia. However, the applicant and his wife departed Australia on 11 January 2018 and therefore the aforementioned legal consequences now have no impact. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given the particular circumstances outlined and that they are the intended consequences of legislation.

26. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to travel to Australia. The Tribunal notes the applicant and second named applicant gave oral evidence indicating that they are facing financial difficulties and lower living standards in India than compared to them being in Australia. Whilst the Tribunal accepts that it is their preference to return to Australia where employment and living standards are higher, it does not accept that they are facing significant hardship given they are residing with the applicant’s parents and have done so for almost one year since their departure from Australia. On balance, the Tribunal does not find that a compelling need to return to Australia arises from the applicant and second named applicant’s claims of hardship, and that any such hardship weighs only slightly against the cancellation of the applicant’s Subclass 187 visa. The Tribunal notes that the applicant raised issues of hardship in relation to his Australian citizen son and they shall be addressed below. For completeness, the Tribunal finds that with respect to the applicant and second named applicant there are no other matters weighing against cancellation of the former’s Subclass 187 visa.

27. The Tribunal notes that the son of the applicant and second named applicant is an Australian citizen who was born in this country. The applicant gave evidence indicating that his son is presently being denied the opportunity to reside in his country of nationality, is exposed to a lower standard of living and cannot obtain the same educational opportunities in the English language as he would in Australia given that in India he resides in a location with limited opportunities in this regard. The applicant also advised that he and his wife are considering sending their son back to Australia and placing him in the care of friends in order for him to access the educational and health advantages in his country of nationality. This would have the impact of splitting the family unit.

28. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR). The Tribunal acknowledges that ‘the best interests of the child’ must be treated as a primary consideration by administrative decision makers. Accordingly, the Tribunal has done so in this matter and elevates the weight afforded to the evidence, detailed above, which is suggestive of hardship being faced by the Australian citizen child, and which weighs against cancellation of the applicant’s Subclass 187 visa. The Tribunal notes further that this primary consideration may be balanced against other considerations, a task which the Tribunal has given very careful consideration.

1. Notwithstanding that the applicant participated in a contrivance in order to obtain and attempt to prevent cancellation of his Subclass 187 visa, the present situation is that his Australian citizen son is not able to reside with his parents in his country of birth and nationality. This situation arises through no fault of the child. Currently the child does not enjoy the same living standards, including access to educational and health facilities, as he would if he resided in Australia. The child also faces the prospect of his parents sending him to Australia without them which would split the family unit. When the best interests of the Australian citizen child are considered holistically, the Tribunal forms the view that they are served by him residing in Australia with both of his parents. Following careful consideration of the evidence and relevant circumstances in this particular review, the Tribunal finds that the best interests of the Australian citizen child, including consideration of matters of hardship pertaining to him, weigh extremely strongly against cancellation of the applicant’s Subclass 187 visa.

   CONCLUSION

2. The Tribunal has carefully reflected upon the factors both in favour of, and against, cancelling the applicant’s Subclass 187 visa. The Tribunal notes that several factors outlined above, in particular the dishonest conduct of the applicant, weigh in favour of cancellation of the Subclass 187 visa. However, the Tribunal is cognisant that ‘the best interests of child’ is a primary consideration, which in the applicant’s case weighs extremely strongly against cancelling his visa given the circumstances of his young Australian citizen son who is presently residing in India. On balance, following much consideration, the Tribunal finds that the factors against cancelling the applicant’s visa outweigh those factors to the contrary.

3. Considering the circumstances as a whole, the Tribunal concludes that the Subclass 187 visa of the applicant should not be cancelled. Whilst the Tribunal has determined that discretionary factors pertaining to the applicant’s Australian citizen son vitiate the visa cancellation decision, the applicant should clearly understand that his future conduct is likely to attract careful scrutiny by the Department. The applicant should be under no illusion that any further dubious behaviour by him in Australia might jeopardise his immigration status and consequently disadvantage members of his family unit.  

   DECISION

4. 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.

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

   K. Chapman

   
   

   Member