Rai (Migration)

[2020] AATA 3266

Rai (Migration) [2020] AATA 3266 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Subhash Rai

CASE NUMBER:  1919684

DIBP REFERENCE(S):  BCC2019/2934041

MEMBER:Bridget Cullen

DATE:12 June 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 12 June 2020 at 1:54pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – position of Café and Restaurant Manager – sponsoring company permanently closed before visa was granted – applicant did not advise Department – changed circumstances – applicant fully involved in business decision making – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 2.41
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s nominating company, Dawani & Virwani Pty Ltd, permanently closed in October or November of 2018, and therefore the nominated position of Café and Restaurant Manager for the nominating company was no longer available, prior to the grant of the applicant’s visa, and the applicant did not notify the Department. 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. The applicant appeared before the Tribunal on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ameet Kumar, former director of the originating nominating company and business partner of the applicant, Falgun Patel, the applicant’s current employer, and Mr Rakesh Kumar, former colleague of the applicant.

4. The applicant was represented in relation to the review, by a barrister, Ms Rita Lahoud. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 in the following respects:

10. Section 104 of the Act requires applicants do the following:

    “(1)If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.”

11. On 11 August 2017, the applicant lodged for their Subclass 187 visa, for the nominated position of Café and Restaurant Manager to work for the nominating company, who was trading as Outback Jack’s Bar and Grill, in Cairns, Queensland. As a result of the information before the delegate at the time of their decision, the nomination was approved on 1 November 2018, and the applicant’s Subclass 187 visa was granted on 24 December 2018.

12. The Department received information on 2 May 2019, to the effect of the closure of the Outback Jack’s Bar and Grill in Cairns in October or November 2018, as the business was failing to pay rent and business overheads. Further, the Department had information that the applicant did not ever work for the nominating company, and resided in Brisbane.

13. As none of this was communicated to the Department, the Department considered that there was no notification of the change of circumstances, as required by s.104(1) of the Act, and therefore found the visa was liable for cancellation consideration under s.109 of the Act.

14. Having considered the s.109 considerations, the Delegate found the non-compliance with s.104 outweighed any considerations under Regulation 2.41, as required to have been considered, and cancelled the applicant’s visa.

15. The Tribunal, as well as the documents before the Delegate made the decision to cancel the applicant’s visa, received and has considered the following received in support of the applicant’s review application:

    -Representative submissions, dated 23 February 2020;

    -Statement of the applicant, signed 21 February 2020, including annexures;

    -Statement of Ameet Kumar, signed 20 February 2020, including annexures;

    -Statement of Mr Rakesh Kumar, signed 19 February 2020;

    -Statement of Dr Sahib Rai, signed 18 February 2020;

    -Statutory Declaration of Chander Jeet, signed 20 February 2020;

    -Statutory Declaration of Pardeep Kumar, signed 20 February 2020; and

    -Statement of Falgun Patel, signed 19 February 2020.

16. The applicant was a Director of Dawani & Virwani Pty Ltd, together with Mr Ameet Kumar.  The applicant says that he met Mr Kumar when they both worked at a restaurant in Brisbane.  After becoming friends, the applicant agreed to buy the Outback Jack’s Bar and Grill Cairns franchise business with him and says that he borrowed money from his father to do so.

17. The applicant says that “he was only working for [Mr Kumar] and [Mr Kumar] was handling all the financials”. The applicant said he was not asked whether he wanted to be a director, or not.  He says that Mr Ameet Kumar managed all the rent payments and negotiations with the landlord.

18. Shortly after the purchase of the Outback Jack’s Bar and Grill, construction commenced on a large hotel business in close proximity, impacting trade. The applicant gave evidence that the construction had a deleterious financial impact on the restaurant, and it became difficult to pay rent. The applicant concedes that rent was not paid in October of 2018.

19. However, the applicant says that the restaurant continued to negotiate with the landlord and was hopeful that arrangements could be made to remain in business. When the nomination was approved on 1 November 2018, the applicant says that he was advised by his registered migration agent, and that he underwent an Australian Federal Police Check. The applicant claims that Mr Ameet Kumar told him he was negotiating with the landlord. 

20. The applicant’s evidence is that on 7 November 2018, the landlord made a demand for rent, with a threat to lock Outback Jacks out of its premises if rent was not paid. The applicant says that on 11 November 2018, the landlord locked Outback Jack’s Bar and Grill out of its premises. Mr Rakesh Kumar, who worked as a cook in the restaurant, says that the lockout date was 10 November 2018.

21. Regardless of whether the lockout date was 10 or 11 November 2018, it is plain to the Tribunal that this was before the applicant’s Subclass 187 visa was granted on 24 December 2018.

22. The applicant says that he did not know the business would fail until after his visa was granted, and for this reason, he says that there was no non-compliance with his obligation to tell the Department of the change of circumstances. 

23. The applicant says that Mr Ameet Kumar assured him that the lockout was temporary, and that the restaurant would come to an arrangement with the landlord that would allow it to continue operations. He says that this did not happen until after his visa was granted on 24 December 2018.  The Tribunal rejects the applicant’s assertions that he did not know the business was failing.

24. The applicant has provided the Tribunal with a letter dated 19 November 2018 sent to Dawani & Virwani Pty Ltd’s lawyers by the landlord’s lawyers, thereby waiving any legal privilege over the contents of same. The letter indicates that the landlord would only allow re-entry if all conditions to re-entry were met, no later than 26 November 2018. The conditions required payment of all back rent and outgoings, the rent and outgoings for November of 2018, the landlord’s legal costs, and a new bank guarantee. Dawani & Virwani Pty Ltd was unable to meet these conditions and remained locked out. 

25. The letter from the landlord’s solicitors does not reveal any intent to enter negotiations with Dawani & Virwani Pty Ltd, but rather, to only allow re-entry if there was strict compliance with the lease terms that had been breached. The evidence before the Tribunal does not point to any realistic prospect that the landlord would allow a rent abatement or reduction of rent, to allow the business to regain entry to its premises.

26. At best, the applicant’s evidence that re-entry may have been successfully negotiated with the landlord can be viewed as blind optimism. This is particularly so given that he outlines the extraordinary financial pressure that was on him both in his statement, and in oral evidence before the Tribunal. The Tribunal finds that the applicant was aware, or should have been aware given his obligations as a Director to be aware of the financial operations of the nominating company, that Dawani & Virwani Pty Ltd was in a dire financial state.

27. Even if the Tribunal accepted the applicant’s story that his co-director, Mr Ameet Kumar kept the true state of affairs from him, and that there were negotiations with the landlord happening about a rent abatement, the applicant was aware of the lockout by the landlord. Given that Outback Jack’s Bar and Grill Cairns could not operate at least from 11 November 2018, the applicant should have then advised the Department that there had been a change in his circumstances.  Looking favourably at the applicant’s case, when re-entry was not gained by 26 November 2018, by complying with the terms set by the landlord’s solicitors, it was abundantly clear to the applicant that Outback Jack’s Bar and Grill no longer required a Café and Restaurant Manager. And yet, the applicant did not contact the Department.

28. The nomination by Dawani & Virwani Pty Ltd of the applicant is one of “self-sponsorship”. Whilst there is no prohibition on self-sponsorship, the relevance of that here is that the applicant was also aware that Dawani & Virwani Pty Ltd could not possibly continue to meet the requirements to sponsor him for the visa. It is obvious that a restaurant that cannot operate because it is locked out of its premises does not require a Café and Restaurant Manager.

29. At worst, the applicant’s story that he did not know the business would fail permanently until after the visa was granted has been contrived following cancellation. The applicant provided the Tribunal with a comprehensive statement supposedly from Mr Ameet Kumar, aligning with his own evidence. Mr Ameet Kumar was called as witness at the applicant’s request. During the hearing, it became apparent that Mr Ameet Kumar claimed that he did not provide the applicant with the statement that was filed in the Tribunal. 

30. The Tribunal took steps to ensure that Mr Ameet Kumar understood what was before the Tribunal, so that his evidence was clear. The Tribunal also provided the applicant’s barrister with opportunity to suggest questions that the Tribunal ask of Mr Ameet Kumar. Mr Ameet Kumar made it very clear that he had not provided the applicant with a written statement. The applicant was unable to explain to the Tribunal how the statement that Mr Ameet Kumar denied ever signing, had been prepared, and then filed in the Tribunal. In these circumstances, the Tribunal is not prepared to place any weight on Mr Ameet Kumar’s statement. Mr Kumar denies having excluded the applicant from business decision making and financial information.

31. The Tribunal’s finding that the applicant was aware that the Outback Jack’s Bar and Grill Cairns’ business had failed prior to 24 December 2018 is supported by his own evidence that he commenced work at Red Rooster in Gympie (a significant distance from Cairns) on 28 December 2018. Clearly the applicant had been taking steps to secure alternate employment before the visa was granted, in the knowledge that Outback Jack’s Bar and Grill (Cairns) was not going to be resurrected by Dawani & Virwani Pty Ltd. The Tribunal thinks it implausible that the applicant’s story that he was waiting for the restaurant in Cairns to reopen during November, December and even into January of 2019 is genuine.  He had relocated cities, and gained new alternative employment in a different city.

32. This is consistent with a finding by the Tribunal that he knew the business venture had failed, and now needed to secure alternative employment to support himself.  Moreover, given that the visa was granted on 24 December 2018, and the fact that 25 and 26 December 2018 were public holidays, it is also unrealistic that the applicant somehow only realised after the grant of the visa that he was in trouble.  That would have, on his own evidence, left him with one business day (27 December 2018) to make arrangements to relocate and secure another job.  The Tribunal finds that these circumstances strongly suggest that he knew he would no longer be able to work in the role he was nominated for by Dawani & Virwani Pty Ltd, and he took no steps to tell the Department.

33. For these reasons, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

34. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

35. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

36. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    The correct information, circumstances in which the non-compliance occurred, and decision to grant the visa

37. As discussed above, the Tribunal rejects as implausible the applicant's suggestion that he was unaware that Outback Jack’s Bar and Grill (Cairns) was no longer in a financial position to be able to sponsor him, let alone continue business. It is obvious that the restaurant could not continue operations, at least from the time of the lockout. The applicant did not apprise the Department of the change of circumstances. Had he told the Department the correct information – that the business was unable to operate following the lockout – the visa would not have been granted. The Tribunal is satisfied that the applicant deliberately chose to undertake this course of action in order to obtain a permanent residence visa to which he would otherwise not have been entitled. The Tribunal considers this a significant factor weighing in favour of cancellation of the visa.

    The present circumstances of the visa holder

38. The applicant is an unmarried Pakistani national, with no children. His family lives in Pakistan. He visited his family in Pakistan between 21 January 2019 and 14 April 2019.

39. He has obtained employment in a regional area (Gympie), working as a Store Manager at Red Rooster. His employer, Mr Falgun Patel, gave evidence that it is difficult to find full time, fully trained staff to work in his restaurant. The Tribunal accepts Mr Patel’s evidence that the applicant has been a reliable worker, and further that staffing can be challenging in regional areas. The Tribunal weighs the applicant’s efforts to self-support slightly in his favour.

40. The applicant owes significant monies to commercial lenders, his father, and friends, following the failed business venture. He does not have any property or significant assets in Australia. The Tribunal weighs this neutrally, neither for, nor against, cancellation.

41. The applicant has resided in Australia for several years, having undertaken studies before entering into the Dawani & Virwani Pty Ltd business venture. He expresses a strong desire to remain in Australia. He has established some friendships. Overall, the Tribunal weighs his present circumstances slightly in his favour.

    The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act

42. The Tribunal concurs with the delegate that the applicant was cooperative in that he responded to the Department's NOICC and has provided further submissions and evidence to the Tribunal. The accords this factor some weight in favour of not cancelling the applicant’s visa.

    Any other instances of non-compliance by the visa holder known to the Minister

43. The Tribunal notes the delegate's finding that there was no evidence of any other non-compliance by the applicant known to the Department. The Tribunal further notes that there is no additional evidence before it. It therefore accords this factor some weight in favour of not cancelling his visa.

    The time that has elapsed since the non-compliance

44. It has been approximately one-and-a-half years since the applicant was granted his subclass 187 visa on the (incorrect) basis that there was a role available to him as a Café and Restaurant Manager for Dawani & Virwani Pty Ltd. The Tribunal considers that this is not an overly lengthy period, considering that the applicant spent approximately 3-months of the period in his home country of Pakistan. The Tribunal accords this factor a slight amount of weight in favour of not cancelling the applicant’s visa.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

1. There was no evidence before the Department, and there is none before the Tribunal, that the applicant has breached the law since the non-compliance identified by the Department. It therefore accords this factor some weight in favour of not cancelling the applicant’s visa.

   Any contribution made by the holder to the community

2. The applicant told the Tribunal that, while in Cairns, he would assist by feeding the homeless.  He did not do this through a charitable organisation, but just of his own volition. The applicant has also been involved in assisting at his Temple. While these are positive contributions, the Tribunal is not satisfied that this constitutes a significant contribution to the Australian community by the applicant, or that it would – in and of itself – justify not cancelling his visa.

   Other relevant factors

3. There are no persons other than the applicant who would be adversely affected by the visa cancellation. The Tribunal has also considered the applicant's claim that his employer would be affected. While the Tribunal accepts that it may be difficult for the applicant’s employer to replace him, Mr Patel gave evidence that he has other restaurant managers, shift supervisors, and other staff, who could step into the applicant’s role, and that any inconvenience will be temporary. The Tribunal is not satisfied that the applicant's employer would not be able to replace him if necessary.

4. The Tribunal is not satisfied that the visa cancellation would lead to the breach of any of Australia's international obligations. The applicant claims that it is difficult for him in Pakistan, as he is a Hindu minority, and will face discrimination. The Tribunal accepts that the applicant desires to remain in Australia, but notes that he has felt comfortable returning to his home country for an extended period, just over one year ago.

   Conclusion

5. The Tribunal considers that the ground for cancellation of the applicant's visa is made out. The Tribunal has weighed the factors for and against cancellation of the applicant's visa carefully. While there are factors which weigh slightly against cancellation (such as the applicant self-supporting and being of value to his employer,  the length of time that has now elapsed since the applicant was granted the subclass 187 visa, the applicant's generally cooperative attitude to the Department, the lack of any other evidence of non-compliance with migration law or any other Australian law, and some minor community contributions), it considers that these are outweighed by the factors in favour of cancellation.

6. Most importantly, the applicant would not have been entitled to the visa if the correct information had been given to the Department. Had the Department been made aware that the nominated position was not needed as a consequence of the restaurant operations ceasing following the lockout from its premises, it would not have granted the applicant a visa.

7. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Bridget Cullen
   Member

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.