PRAJAPATI (Migration)

[2019] AATA 6529

PRAJAPATI (Migration) [2019] AATA 6529 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Sandipkumar Govindbhai PRAJAPATI
Hetalben Sandipkumar PRAJAPATI
Bhavyaben Sandip Kumar PRAJAPATI
Saanvi Sandipkumar PRAJAPATI

CASE NUMBER:  1906106

HOME AFFAIRS REFERENCE:               BCC2018/2048825

MEMBER:Lilly Mojsin

DATE:22 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 22 November 2019 at 12:01pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – employment ceased – position of Fleet Manager – genuine effort to commence the employment – employer offered not regionally based positions – sponsor offered only initial training – family health issues – compelling need – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 137
Migration Regulations 1994, Schedule 2 cls 573.111; Schedule 8; Condition 8202; rr 2.50, 5.19

CASES

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197
Su v MIBP [2016] FCCA 83   

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 6 March 2019 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 pursuant to s.137Q(2) on the basis that the applicant had his employment terminated within 2 years of commencing employment with his sponsor and had not made a genuine effort to be engaged in that employment for the required 2 year period.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to his application.

4. 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.

5. The applicants appeared before the Tribunal on 22 August 2019 and 10 October 2019 to give evidence and present arguments.

6. The Tribunal hearing was conducted in English and the applicant occasionally utilised the service of an interpreter in the Gujarati and English languages.

7. The applicants were represented in relation to the review by their registered migration agent, who attended the Tribunal hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

Delegate’s decision and information in Department file

1. As recorded in the delegate's decision, a copy of which was provided with the review application, the applicants' subclass 187 visas were granted on 12 May 2016 on the basis of the applicant's nomination for the position of Fleet Manager (ANZSCO 149411) by his employer Mark’s Fuel Delivery [nominating employer] in the regional town of Mossman, Queensland.

2. The delegate stated that on 22 August 2017 and 25 August 2017, a Departmental Officer attempted to contact the applicant’s nominating employer, as part of a random compliance check. Due to these unsuccessful attempts, the Departmental Officer then contacted the applicant regarding his employment with the nominating employer. The applicant informed a Departmental Officer that he was employed by the nominating employer on a part time basis for approximately five months, but at that time he was no longer employed by his nominating employer or living in a regional area.

3. The delegate indicated that on 27 July 2016, the applicant stated he contacted Julie Stephens, the nominating employer’s spouse, via telephone, to enquire about his prospective employment commencement date. The applicant submits he was advised to attend the training and induction course prior to commencement. The applicant submitted he attended induction and training in August 2016, in compliance with his employer’s instructions, however, post training and induction, he was never formally requested to commence employment in his nominated position as Fleet Manager.

4. On 4 October 2016, the applicant submitted that his nominating employer contacted him to terminate his employment, due to the business downturn and therefore the Fleet Manager position was no longer required at the Mossman location. The applicant submitted that despite the termination, he made genuine efforts to remain engaged in that employment by enquiring whether his employer had any other vacancies for other positions at the business’ different regional sites. The applicant submitted that his employer advised him they only had a truck driving or warehouse position located in their Sydney office, however he declined these positions as they were not regionally based.

5. On 7 February 2017, despite no confirmed commencement date, the applicant submitted he and his family relocated to Rockhampton and then to Parramatta Park to stay with his friend, in case his employer had a change in the position requirements in Mossman. The applicant continued to maintain contact with his employer but was notified to contact another person in Mossman for employment. He travelled to Mossman to meet this person, but was declined employment in a pub, due to having no vacancies.

6. The applicant submitted to the Department that he and his family experienced financial hardship whilst waiting for his nominating employer to confirm employment, so he began applying for various roles in Queensland, where he secured a casual position as an Assistant Nurse for Queensland Health on 28 March 2017. As his daughter was experiencing bullying and harassment at school and was exhibiting signs of depression which he assumed was attributed to being uplifted from her environment in Sydney and placed in an unfamiliar environment, the family decided to relocate back to Sydney where the applicant is currently employed. 

7. The applicant submitted his employer verbally offered him a truck driving position or warehouse role in their Sydney sites, however the applicant declined these positions as it did not align with the obligations under his RSMS (subclass 187) visa.

8. The applicant submitted his employer never corresponded with him in writing, only in person and via telephone calls. Therefore the applicant is unable to substantiate his claims in regard to requests for training, offers of alternative positions and reasons for termination of employment.

9. The Department then issued a Notice of Intention to Cancel on 24 January 2019. On 12 February 2019, in response to the Notice, the applicant submitted he attended induction and training in Sydney in August 2016, at his nominating employer’s request. However, post induction and training, he contacted his sponsor regarding his employment commencement date in order to begin preparations for the relocation to Queensland, however his employer kept postponing the commencement date until November 2016. 

10. On 27 February 2019, a delegate contacted the applicant’s sponsor via telephone to enquire about the circumstances surrounding the applicant’s termination of employment. The sponsor submitted it was the applicant who requested his employment be terminated. Further, the applicant had attended the sponsor’s place of business in Sydney and requested a separation certificate, to state that the applicant could not commence employment as there were no positions available. The sponsor said that they refused to provide such a letter as this was not the case.

11. The sponsor acknowledged they requested the applicant to attend standard induction and training, required for all prospective employees prior to commencement. However, this training was different to the company’s own induction and training, which the applicant did not attend. The sponsor said that he was not experiencing a downturn in business activity and the nominated position was available to the applicant to commence employment.

12. On 27 February 2019, the delegate requested the sponsor to provide their reasons for termination in writing by 4 March 2019. The nominating employer did not provide any further information.

13. The delegate stated in the decision that the Department had received the following documents in support of his response to the Notice of Intention to Cancel:

    • Form 956, appointing Man Mohan Makkar, Registered Migration Agent Representative, dated 12 February 2019
    • Dr Palu Malaowalla report, Bhavyaben PRAJAPATI, dated 11 February 2019
    • Letter from Naimish Patel, dated 8 February 2019
    • Letter from Pratik Patel, dated 8 February 2019
    • Statement from Sandipkumar Govindbhai Prajapati, dated 6 February 2019
    • Email correspondence from BAPS YUVAK MANDAL Sydney to Sandipkumar Govindbhai Prajapati, invitation to Youth Seminar, dated 5 January 2019
    • Email correspondence from BAPS INFO Sydney to Sandipkumar Govindbhai Prajapati, invitation to Diwali and Annakut Celebration on 12 February 2019, dated 6 November 2018
    • Email correspondence from BAPS INFO Sydney to Sandipkumar Govindbhai Prajapati, invitation to Janmashtami Celebration on 3 September 2018, dated 29 August 2018
    • Email correspondence from BAPS INFO Sydney to Sandipkumar Govindbhai Prajapati, invitation to Rathyatra event on 14 July 2018, dated 10 July 2018
    • PAYG Payment Summary for Sandipkumar Govindbhai Prajapati, issued by Queensland Health, for payment period 1 July 2017 to 30 June 2018, dated 5 July 2018
    • Employment confirmation from Queensland Health for Sandipkumar Govindbhai Prajapati, dated 8 March 2018
    • Email correspondence from BAPS INFO Sydney to Sandipkumar Govindbhai Prajapati, invitation to Pushpadolotsav event, dated 2 March 2018
    • Notification of job application outcome from Service NSW for Customer Service Representative – Permanent – Tweed Heads position, dated 7 August 2017
    • Payslip issued by Queensland Health, for payment period 19 June 2017 to 2 July 2017, dated 12 July 2017
    • PAYG Payment Summary for Sandipkumar Govindbhai Prajapati, issued by Queensland Health, for payment period 28 March 2017 to 30 June 2017, dated 6 July 2017
    • PAYG Payment Summary for Sandipkumar Govindbhai Prajapati, issued by Queensland Health, for payment period 1 July 2017 to 30 June 2018, dated 5 July 2018
    • Payslip issued by Queensland Health, for payment period 5 June 2017 to 18 June 2017, dated 28 June 2017
    • Notification of job application outcome from Service NSW for Customer Service Representative – Permanent – Tamworth position, dated 19 June 2017
    • Notification of receipt of application from Queensland Department of Health for Assistant in Nursing position, dated 14 June 2017
    • Payslip issued by Queensland Health, for payment period 22 May 2017 to 4 June 2017, dated 14 June 2017
    • Notification of job application outcome from NSW Health for Assistant in Nursing – Medical One – Wyong position, dated 13 June 2017
    • Notification of job application outcome from Service NSW for Customer Service Representative – Permanent – Mudgee position, dated 5 June 2017
    • Notification of receipt of application from Queensland Department of Health for Administrative Officer position, dated 5 June 2017
    • Notification of receipt of application from Metro South Hospital and Health Service for Administration Officer position, dated 5 June 2017
    • Notification of job application outcome from TAFE NSW West for Administrative Support Officer – FACS, Bathurst position, dated 31 May 2017
    • Notification of receipt of application from NSW Police Force for General Administrative Support Officer position, dated 31 May 2017
    • Notification of job application outcome from Mackay Hospital and Health Service for Administrative Officer position, dated 29 May 2017
    • Notification of receipt of application from Murrumbidgee Local Health District for Administrative Officer – Ambulatory Care Clinics position, dated 29 May 2017
    • Notification of job application outcome from Queensland Department of Health for Personal Care Worker – Rockhampton position, dated 29 May 2017
    • Notification of receipt of application from Service NSW for Customer Service Representative (Digital Services) – Permanent – Goulbourn position, dated 18 May 2017
    • Notification of receipt of application from Central Coast Local Health District for Administrative Support Officer position, dated 23 April 2017
    • Commonwealth Bank of Australia bank statement of Sandipkumar Govindbhai Prajapati and Hetalben Sandipkumar Prajapati, for period 14 March 2017 to 13 April 2017
    • Notification of receipt of application from Queensland Department of Health for Personal Care Worker – Rockhampton position, dated 13 March 2017
    • Notification of receipt of application from Queensland Department of Health for Administrative Officer – Clinical Governance Unit – Longreach position, dated 26 February 2017
    • Mark’s Fuel Delivery Pty Ltd Induction Card, valid until December 2016
    • Termination Letter from Mark’s Fuel Delivery Pty Ltd to Sandipkumar Govindbhai Prajapati, dated 4 October 2016
    • Notification to Hetalben Prajapati confirming interview for position of Hospital Assistant at Western NSW Local Health District, no date
    • Notification to attend Information and Testing Session from Transport for NSW for Passenger Attendant position, no date
    • Notification of receipt of application from Australia Post for Postal Delivery Driver – Motorcycle – Mackay DC position, no date.

14. The Tribunal notes that only some of these documents were located in the Department file delivered to the Tribunal. The applicant subsequently provided the documents to the Tribunal, at the Tribunal hearing.

Tribunal hearing

1. At the Tribunal hearing the applicant and his adviser were asked if they had any further submissions and both indicated they did not.

2. The applicant advised the Tribunal that he was born in India and he is 35 years of age. He is married. He has two children both of whom were born in Australia. His children are of 10 and 3.5 age. His parents live in India. His wife’s parents live in India and their siblings are living in India and Kenya. When he lived in India he completed a Diploma Course in Mechanical Engineering. He arrived in Australia in 2007 to study English, Commercial Cookery, a  Diploma Business Management and an Advanced Diploma in Human Relations Management. He completed his studies in 2015.  He worked in a Pharmacy Company and also at BP. He worked as an assistance nurse, after completing a 2 months course.

3. The applicant found employment with his sponsor, when he met him in Wetherill Park at the CSR warehouse making gyprock. His sponsor then promised him a job with his own business. The sponsor told him that he has a business in Queensland and he said would give him a job. He explained his visa situation to the sponsor. By June 2015 the sponsor applied for the visa which was granted on 12 May 2016. 

4. The applicant, around August 2016 met his sponsor, Mark, at his place in Blacktown and they went to CSR warehouse in Wetherill Park.  He had induction in CSR warehouse.

5. Asked to describe his sponsor’s business, he said that it was a transport company and provided trucks to transport.

6. The induction was 2 -3 hours and Mark conducted the course and walked through the induction. It was put to the applicant that the ticket he produced did not have a name on it. Asked if he was paid, he said it was a lump sum payment of $150 cash. He was offered $45 000 plus superannuation for his job.

7. After that his sponsor did not call him. Around September he called the sponsor and asked when he can start work. He was told the end of September. He called Mark and Mark told him that he does not have anything. He said he cannot offer any employment. 

8. The applicant was surviving financially. He received Centrelink and he had some savings in his account. When he went on 4 October 2017 to see his sponsor, Mark handed him a termination letter and he said “you are now free from contract”. He never started to work with him.

9. The applicant and his family moved to Rockhampton in February 2017. One of his friends lived there. He said that he can help him. He found a job as a nursing assistant in Rockhampton. He worked there for 8 hour shifts. He moved back to Sydney as he could not survive in Rockhampton.

10. The applicant kept calling his sponsor, Mark who told him to call Brad in Mossman. His friend in Cairns could not find him a job.

11. His daughter told him she does not like it in Rockhampton. His friend is a mental health clinical nurse and told him that friends are teasing his daughter.  He did not take his daughter to see a doctor in Rockhampton. He moved to Sydney and applied for many jobs, until he got a job in Liverpool hospital. He worked there in 2017 -2018. He worked in Westmead Hospital as a cleaner. He then obtained employment with Sydney trains as a cleaner.

12. Asked if he had any correspondence or email or SMS messages on his telephone regarding the claimed contacts with the employer, he said he did not.

13. The Tribunal noted that the applicant obtained a casual position as an assistant nurse with Queensland Health on 28 March 2017 and asked the applicant about his qualifications to obtain this position. He said he completed a certificate course.

14. In relation to a medical report from Dr Palu Malaowalla dated 11 February 2019, the Tribunal asked the applicant why his daughter had not seen a doctor in 2017.

15. The applicant said that he has a compelling need to remain in Australia. He and his wife arrived in Australia in 2007 and it is 2019 so now they have good bonding in Australia with culture and life. Both of his daughters are born in Australia and all his life is in Australia. His daughter knows nothing about India and does not know about the culture.

16. The Tribunal asked the applicant why he was unable to return to India and re-establish himself there as he now had qualifications and experience as an assistant nurse.  He said he has only studied Diploma courses in Australia and it is hard to get a job. They do not have any properties there. He has a 2 bedroom house over there and they do not have the financial situation to buy in India.

17. When they moved from Sydney to Rockhampton this had an impact on his daughter’s life. Going back to India there is a language barrier she does not know how to write in Guajarati. His children’s culture is Australian. Her life will be destroyed. His wife’s family might force her to divorce him as he does not have a proper job. Asked why he did not continue on and study nursing, he said he does not have the background.

18. Asked about hardship the applicant said that they do not have enough backup with family. In India there is not an option, they have nothing in India and his wife does not have qualifications, his wife works cleaning and has worked in the warehouse.

19. The applicant said that he and his family are unable to return to India due to a lack of financial support.

20. At the 2^nd Tribunal hearing held on 10 October 2019 the applicant provided SMS messages on his telephone regarding his claimed contacts with the employer.  He said that the phone number 0424945901 was Mark, his employer and it was a conversation between the applicant and Mark. The number 040389687 was Julie, wife of Mark.

21. It was also discussed with the applicant the information provided by the sponsor to the delegate that he had not attended induction by the sponsor. When asked why he would be inducted at another employment site and not at a site operated by his sponsor the applicant said that he was supposed to be a Fleet Manager and when he contact him and told him he needed a job at that time he said “before you start you needed training”. Julie wife contacted him and Julie took him to CSR and after going there he met Mark also. He, Julie and Mark met at CSR. Mark said all the trucks were leased to this company and so he was providing training here. Afterwards he will send him somewhere else in a regional area. He told him before moving he needed this type of training and therefore he provided training in this company. He was unaware what Mark’s plan was.

1. The training comprised of walking around the whole company and he should know how they are working in that company and with another employee. He also advised they lease the trucks of different companies. At that time he provided information verbally about administration and how to control the files. Mark said his son is over there and he would sit with them.

2. Put that it did not appear to be training. He said he provided training in this manner. He told him no worries just walk around in this company and after that sit with my son. He said that we use different software. He told the applicant how to use that software.  He said when he entered CSR the training pass was given to him and after that Mark made him sit down and he provided information verbally. Then he placed him with another employee of that company. He said Mark’s son had an office at CSR.

3. The Tribunal put to the applicant information pursuant to s.359AA. The Tribunal explained to the applicant he could seek an adjournment to respond, or respond in writing or he could respond immediately. The Tribunal put to the applicant that on 22/08/2017 a Departmental officer called him. He was asked

Q. Where are you currently working?

A. Mark's Fuel. They are my sponsors. Working part time due to medical issues

Q. How long have you been working there?

A. 5 months or something

The Tribunal further put to the applicant that the Department officer noted and he responded that he worked at 2 Front Street Mossman.

1. The Tribunal indicated to the applicant that this information was relevant because the address provided is that of the Exchange Pub and it was not the sponsor’s address. It was explained that this evidence is inconsistent with his evidence given to the Tribunal and may lead the Tribunal to conclude he is not telling the truth.

2. He responded and said that when he received the phone call it was windy and he also told the Department officer he is unable to hear him clearly.  He said he lived in Rockhampton and he worked there for 5 months.  He said that he was to be sponsored and when he moved he asked Mark for a job and at that time he gave him an address. After that he called Brad.  He told him he does not have a position for a fleet manager and currently there is no position for a fleet manager. It was a casual job. He told him he has been living in Rockhampton for 5 months. The Department officer misunderstood him, ‘it was a miscommunication between us’. After he contacted Mark he went to Mossman to search for a job.

3. When he received the Department phone call he was in Sydney. He was under lot of stress and he was confused and frightened. There is a possibility he might have misunderstood.

4. The Tribunal again put to the applicant information pursuant to s.359AA. The Tribunal put to the applicant that on 22/08/2017 a Departmental officer called him and asked where he worked and he replied Mark’s Fuel and his evidence provided to the Tribunal was that he was not employed by Marks’ Fuel at that time.

5. The Tribunal explained that if the Tribunal relies on this information in making its decision, the Tribunal may reach the conclusion that he has not been truthful.

6. The applicant responded, stating that he said that earlier on when he received phone call he had family issue and was under stress. There was also windy weather and he said he had been staying in Rockhampton and the officer asked which company sponsored him and what position. At that time the sponsor was Mark as fleet manager and he told him everything. They had a conversation about a lump sum payment with Mark and he had spoken to him and paid him $150 for training. The job had not started at all and Mark told him after initial training he will start his job. That time he told him the duties were fleet management and outgoing and incoming trucks and he would report to a senior officer.  He said earlier some there was some misstatement that could have taken place. 

7. Asked if he is claiming that the report is not a correct recording of the situation. He responded that what he has stated to the Tribunal is the correct situation.

REASONS AND FINDINGS

1. The issue in the present review is whether the ground for cancellation of the first named applicant’s visa is made out, and if so, whether the visa should be cancelled.

2. 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).

3. 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 r.2.50AA. In the case of a subclass 187 visa, that period is six months from the date of grant of the visa.

4. 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.

5. Subsections  137Q (1), (2) and (3) of the Act state:

Section 137Q . Cancellation of regional sponsored employment visas Employment does not commence

(1) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations ; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

Employment terminates within 2 years

(2) The Minister may cancel a regional sponsored employment visa held by a person if: the Minister is satisfied that:

(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and

(iii) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

(3) In this section:

regional sponsored employment visa means a visa of a kind that:

(a) is included in a class of visas that has the words “Employer Nomination” in its title; and

(b) is prescribed by the regulations for the purposes of this definition.

1. A Subclass 187 (Regional Sponsored Migration Scheme) visa is one subclass in the Regional Employer Nomination (Permanent) (Class RN) visa category and, therefore, the Tribunal finds that it meets the requirements of s.137Q(3)(a). In addition, r. 2.50AA of the Regulations prescribes a subclass 187 visa for the purposes of the definition of a 'regional sponsored employment visa' in s.137Q (s.137Q(3)(b)).

2. It follows that the Tribunal finds that the subclass 187 visa granted to the applicant on 12 May 2016 is a 'regional sponsored employment visa' as defined in subs.137Q(3) and that it is a visa that may be cancelled under subs. 137Q (1) or (2).

3. The issue that arises therefore is whether regional employment, at a location other than that specified in the nomination application, can be construed to mean “ the employment referred to in the relevant employment nomination” for the purposes of s.137Q(1)(a).

4. The legislation does not specify whether 'the employment' encompasses the location of the employment or whether the position is full time or part time. Further, the Department's Procedures Advice Manual is also silent on the issue.

5. Section 137Q (1) of the Act was considered in Su v MIBP [2016] FCCA 83 and is authority that the words 'the employment referred to in the relevant employer nomination' would encompass whether the position is part time or full time. Although there has been no specific judicial consideration whether 'the employment' also encompasses the place of the employment, the Tribunal considers that there is a strong argument that it does. This is because, for the nomination to be approved, the employer must demonstrate that there is a need for a paid employee in a business that is operating in the place identified on the nomination form (see r.5.19(2), r.5.19(3)(e), r.5.19(4)(e), r.5.19(4)(h)(ii)(C), 5.19(4)(h)(ii)(E)), which cannot be filled by an Australian citizen/resident who is living in the same local area as that place. It would seem contrary to the purpose for which the visa is granted to then enable the applicant to work outside the location or that place that is linked to the grant of the visa (even if it is still in regional Australia).

6. In assessing whether or not the applicant commenced employment, the applicant has not provided any evidence to the Department, in the nature of pay slips etc., that would suggest he commenced employment. However, the applicant contends that he attended an induction course at CSR at the request of his sponsor and was paid $150 in cash, by his sponsor.

7. The Tribunal has considered the evidence of the applicant that he attended at the CSR site, a place where he claims his sponsor took him as it was where the sponsor obtained work and he was inducted there. The evidence produced by the applicant was a CSR card, undated and without a name.  The Tribunal gives the applicant the benefit of the doubt and accepts that he attended induction organised by the employer. The Tribunal does not accept that attending an induction course at Wetherill Park constitutes commencement of employment with his employer at Mossman. The Tribunal finds that the applicant did not commence employment as a Fleet Manager for his nominating employer, the sponsor, Mark’s Fuels at Mossman. 

8. Therefore the Tribunal is satisfied that the applicant did not commence employment with the sponsor accordingly, the Tribunal is satisfied that applicant had not commenced the employment referred to in the relevant employer nomination within the prescribed period and that s.137Q(1)(a) of the Act is met.

9. Alternatively, Tribunal has considered if it is wrong in this regard, it has also considered s.137Q(2).

10. As noted, subsection 137Q(2)(a) also provides that “the Minister may cancel a regional sponsored employment visa” if he or she is satisfied that the grounds in paragraphs 137Q(2)(a) and (b) are met. Those grounds apply where the Minister is satisfied that the person commenced the employment referred to in the relevant employer nomination and the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment.

11. As claimed by the applicant, he commenced the relevant employment in August 2016. The relevant two year period would therefore cease in August 2018. The applicant has acknowledged that he now no longer lives in Cairns or Rockhampton, and, since, has resided in Sydney, not in a regional area. He claimed he moved back to Sydney because of his daughter’s troubles in Rockhampton. He continues to work as a cleaner with a different employer.

12. The applicant's engagement in the relevant employment at Mark’s Fuels, even if it was accepted to have relevantly commenced in August 2016, ceased before August 2018 as it comprised of attending an induction course for one day. On the applicant’s evidence he was not engaged in the employment referred to in the relevant employer nomination.

13. The Tribunal therefore finds, in the alternative, that the requirements of paragraph 137Q(2)(a) are satisfied.

14. The issue then becomes whether the Tribunal is satisfied that the applicant made a genuine effort to commence, or remain engaged in, that employment within or for that period: s.137Q(1)(b) and s.137Q(2)(b). That period is relevantly prescribed in r.2.50AA to be within 6 months from the date the applicant first entered Australia as the holder of the visa for s.137Q(1)(b) or, for s.137Q(2)(b), for 2 years from the commencement of the employment.

15. In relation to s.137Q, the Department's guidelines provide as follows:

    In order for the grounds for cancellation at s137Q(2) to be made out, not only must the visa holder have not commenced employment or completed the required two year employment period, the visa holder must also have not satisfied the delegate that they have made a genuine effort to commence employment, or to complete the required two year employment period.

    Note: The onus is on the visa holder, through their representations, to satisfy the delegate that they have made a genuine effort to commence employment or complete the required employment period.

    It is expected that the visa holder will commence employment or complete the required employment period, unless there are compassionate or compelling circumstances that prevented them from doing so. For example, a person cannot be considered to have made a genuine effort where they have ceased employment because a more attractive employment offer from another employer has been made.

    In assessing whether the visa holder has made a genuine effort, the delegate should consider:

    the visa holder's reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)

    the possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia

    in the case of termination, the period of the visa holder's employment with the employer prior to termination of the employment and

    any other matter which is relevant to the commencement or termination of the employment.

    A visa holder may be able to satisfy the delegate that they have made a genuine effort if the failure to commence or complete the two year employment period was because of a situation beyond the visa holder's control. Examples include: the position was not filled or did not remain viable due to a serious downturn in business activity or financial loss, bankruptcy or closure of the business.

    A situation intentionally created by the visa holder that results in termination of their employment would not be considered a genuine effort.

16. In assessing whether the applicant has made a genuine effort to commence that employment or to complete the required two year employment period, the Tribunal has considered the applicant’s evidence. The Tribunal accepts that the applicant and his family relocated to Rockhampton from Sydney and then stayed at Parramatta Park. The Tribunal accepts that the applicant moved back to Sydney in 2017.

17. In the Department decision, the delegate stated that the applicant’s sponsor told the Department that the applicant had resigned from his employment. The applicant claims he was terminated. The Tribunal has considered a termination letter provided by the applicant. It is not on letter head. It does not indicate the author of the letter. Therefore the Tribunal places no weight on the letter. The Tribunal is not satisfied that the applicant’s sponsor provided him with a termination letter. The Tribunal is therefore not satisfied that the applicant’s employment was terminated by the sponsor. The Tribunal prefers the information provided by the sponsor that the applicant did not commence employment with him other than to attend an induction course. As the applicant did not commence employment, the Tribunal does not accept that the applicant made a genuine effort to commence employment or to complete the 2 year employment period.

18. Even if the Tribunal accepted that the non-commencement with Mark’s Fuels was a matter outside the applicant's control, and it does not, it was a matter which was relevant to the consideration of his visa eligibility. Not only did the applicant fail to advise the Department that he did not commence this employment only attending an induction course, more seriously, when contacted by the Department the applicant did not tell the Department about his true circumstances.

19. The Tribunal does not accept that the applicant is a witness of truth. The Tribunal put to the applicant information provided by the Department pursuant to s.359AA. This information was that an officer had contacted the applicant on 22/08/2017 and he told the officer that he was working for Mark’s Fuels at 2 Front Street Mossman for the past 5 months on a part-time basis. The address 2 Front Street Mossman is that of a pub. The evidence is that at the time of the phone call, the applicant did not work for Mark’s Fuels at Mossman. He told the Tribunal he was in Sydney.  His explanation for providing incorrect information was that it was windy and he was not able to hear the officer clearly. He said that he told the officer that he has been living in Rockhampton for 5 months. He explained that there was a misunderstanding. The Department officer misunderstood him, ‘it was a miscommunication between us’. 

20. Whilst the Tribunal accepts that it was windy and he was under lot of stress, that he was confused and frightened, the Tribunal is not satisfied, in light of his response providing a detailed employment address ie a Mossman address, that he might have misunderstood. The Tribunal is satisfied that at the time of the telephone call with the Department the applicant was in Sydney and he provided false information to the Department officer regarding his employment and location.

21. The applicant claimed that he continued to maintain contact with his employer and was notified to contact another person in Mossman for employment so he travelled to Mossman to meet this person, but was declined employment in a pub. The applicant also told the Tribunal that he did not commence the nominated employment at Mossman because his sponsor did not require that he do so, due to a financial downturn. This was disputed by the sponsor. The Tribunal prefers the information obtained from the sponsor by the Department.  As the applicant is not a witness of truth, the Tribunal does not accept that he was notified by his employer to contact another person for employment, in Mossman.

22. The applicant also claims that despite the termination, he made genuine efforts to remain engaged in that employment by enquiring whether his employer had any other vacancies for other positions at the business’ different regional sites. The applicant claimed that his employer advised him they only had a truck driving or warehouse position located in their Sydney office, however he declined these positions as they were not regionally based. As the Tribunal does not accept that the applicant is witness of truth the Tribunal rejects the applicant’s explanation that he continued to contact his employer, seeking employment or that the employer offered him a position in his Sydney office.

23. The Tribunal has considered the copy telephone calls claimed to be between the applicant and Mark, his sponsor and with Mark’s wife Julie. The Tribunal accepts that there were calls between the applicant, Mark and his wife Julie. As there is no information before the Tribunal as to what those calls were about and as the Tribunal has found that the applicant is not a witness of truth, the Tribunal does not accept that the applicant continued to contact his sponsor about when he was to commence employment. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant did not commence employment for his own reasons.

1. The Tribunal does not accept that there is any basis on which the applicant can be considered to have made a genuine effort to commence employment with his sponsor when he had full knowledge that such commencement was impossible. For completeness the Tribunal also finds the applicant did not make a genuine effort to remain in employment.

2. Having regard to all the evidence and material before it, the Tribunal is satisfied that the applicant did not commence the employment referred to in the relevant employment nomination in the period prescribed and the applicant has not satisfied it that he made a genuine effort to commence that employment within that period: s.137Q(1)(b) and s.137Q(2)(b).

3. For these 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 power to cancel the visa should be exercised.

4. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant's visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department's Procedures Advice Manual PAM3 'Regional sponsored employment visa cancellation'.

5. The purpose of the applicant's stay in Australia was to commence and maintain for the specified period the employment referred to in the relevant employer nomination. As found above, the Tribunal is not satisfied that the applicant has done so and it follows that the purpose of his stay in Australia no longer exists. The Tribunal weighs this factor in favour of cancelling the visa.  

6. In regard to whether the applicant has a compelling need to travel to or remain in Australia the applicant told the Tribunal that he and his wife arrived in Australia in 2007 and they have good bonding in Australia with culture and life. His children have an Australian culture.

7. While there is no specific judicial authority on the meaning of 'compelling need' in this context, the Tribunal considers the comments of the Full Court, (Tamberlin, Conti and Jacobson JJ) at [24]), in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285, regarding the meaning of 'compelling', to be apposite: on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in r.1.20J(1) should be waived.

8. More recently, the High Court approved and applied those observations in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197, where the plurality (French CJ, Bell, Keane and Gordon JJ) said at [31]: the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application.

9. The Tribunal also notes that according to the Macquarie Dictionary Online the term 'compelling' is defined to mean: “1. demanding attention or interest…2. convincing: a compelling argument”. It defines 'compassionate' to mean: “1. having or showing compassion. 2. on the grounds of compassion: compassionate leave…4. to have compassion for; pity”.

10. Similarly, the Oxford Dictionaries Online defines 'compelling' to mean: “evoking interest, attention, or admiration in a powerfully irresistible way…not able to be refuted; inspiring conviction…not able to be resisted; overwhelming”.

11. The Tribunal does not accept that being in Australia since 2007 or having a bonding with Australia or children feeling culturally Australian is a compelling need to remain in Australia.

12. The Tribunal weighs this factor in favour of cancelling the visa.  

13. In regard to the degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship) the Tribunal accepts that the applicant’s children have been born in Australia and the children would suffer hardship both emotional and psychological on return to India, especially as they do not speak the language and know nothing about India and its culture. Further, the Tribunal accepts that it will be difficult for the couple to find work as despite the applicant’s qualifications and experience as an assistant nurse he has only studied Diploma courses in Australia and it is hard to get a job. They do not have any properties there and they do not have the financial situation to buy a house in India.

14. The Tribunal weighs this factor against cancelling the visa.  

15. In regard to the extent of compliance with visa conditions, the Tribunal notes that the applicant did not notify the Department when he did not commence employment with the sponsor and when contacted by the Department did not provide the Department with truthful answers, when asked. Specifically, the applicant was obliged to notify the Department of changes to his circumstances. He did not notify the Department that the nominated position was no longer available to him or that he was working in Rockhampton, or not at all.  Whilst the Tribunal accepts that the applicant was stressed and anxious at the time, nevertheless this does not excuse the fact that the applicant was not truthful.

16. The Tribunal weighs this factor in favour of cancelling the visa.  

17. In considering the circumstances in which ground of cancellation arose, the Tribunal has considered whether the circumstances were beyond the applicant’s control. The applicant claims that the employer informed him that his business was unable to employ him but his sponsor told the Department that the applicant had resigned from his employment. The Tribunal has considered a letter provided by the applicant as evidence his termination. It is claimed that it was signed by the sponsor Mark and it has his telephone number on it. The Tribunal places no weight on this letter, it is not on letterhead with the sponsor’s business details.

18. As the Tribunal is not satisfied that the applicant made a genuine attempt to obtain employment with his sponsor, the Tribunal is not satisfied that the circumstances in which the ground of cancellation arose were beyond the applicant’s control.

19. The Tribunal weighs this factor in favour of cancelling the visa.  

100.   Other that not telling the Department the truth in the past regarding his employment, the Tribunal has no other adverse information about the applicant’s present behaviour towards the department.

101.   As the applicant did not tell the truth in the past the Tribunal weighs this factor in favour of cancelling the visa.  

102. There are persons in Australia whose visas would, or may, be cancelled under s140, the applicant’s wife and children. Therefore any cancellation of the applicant’s visa will result in the automatic consequential cancellation of the visa of another person under s140 of the Migration Act. The cancellation would enliven s.48 of the Act and result in the applicant and his family being unlawful and subject to detention and removal from Australia. They may however be entitled to a Bridging visa E. There are only very limited circumstances in which the applicant could make a valid visa application onshore.

1. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

104.   There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. The Tribunal further finds that the ability of Australia to comply with the principles of family unity under the CROC and the ICCPR would not be affected by the cancellation of the applicant's visa as the family would not be separated as a consequence of the cancellation. Therefore no issues arise in this regard.

1. As the applicant’s evidence to the Tribunal is that if the visa is cancelled he and his family will return together, on the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

106.   The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

107.   The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

108.   The Tribunal accepts that the applicant and his family experienced financial hardship when he did not commence employment with Mark’s Fuels and he began applying for various roles in Queensland. The Tribunal accepts that the applicant obtained a casual position as an Assistant Nurse for Queensland Health on 28 March 2017. The Tribunal accepts that the applicant left Rockhampton because his daughter was bullied and the family needed to return to Sydney.

109.   Having regard to the circumstances, in particular the inconsistencies in the evidence between the applicant and his former sponsor and the applicant not truthfully informing the Department of his work situation, the Tribunal considers these factors weigh strongly in favour of the exercise of the discretion to cancel the visa. As noted above, the Tribunal accepts that, if the applicant and family are required to depart Australia and return to India, it will have a negative effect on their financial position. Without employment, the Tribunal further accepts their return to India may mean financial hardship for the couple. The Tribunal also notes however that the applicant has worked as an assistant nurse.  In the circumstances the Tribunal considers the applicant is very resourceful.  On this basis the Tribunal gives little weight to this factor as a reason not to exercise the discretion to cancel the visa.

110.   Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder's control. As the Tribunal is satisfied the applicant did not commence employment because the applicant did not wish to do so the Tribunal is not satisfied these are circumstances were beyond the applicant’s control.

111.   There were no other matters raised at the hearing or arise on the material before the Tribunal. The Tribunal considers that the factors in favour of the exercise of discretion to cancel the visa outweigh those reasons for not cancelling the visa.

112.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

113.   The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Lilly Mojsin

Member