RAJINDER SINGH (Migration)

[2019] AATA 5676

RAJINDER SINGH (Migration) [2019] AATA 5676 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajinder Singh

CASE NUMBER:  1905173

HOME AFFAIRS REFERENCE(S):          BCC2018/5454249

MEMBER:Penelope Hunter

DATE:21 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 21 August 2019 at 8:52am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Café and Restaurant Manager – ceased employment with sponsor for more than 90 days – business ceased operating – failed to find another approved sponsor – lack of evidence – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140ZH
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8107 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 16 July 2019 to give evidence and present arguments.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa. Relevantly, this condition requires the visa holder, among other things, to work in the occupation listed in the approved nomination unless certain circumstances apply, and that if the visa holder ceases employment, the period during which the holder ceases employment must not exceed 90 consecutive days.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that he was granted a Subclass 457 visa on 22 September 2016, having been sponsored by R & A Restaurants Pty Ltd in the position of Café and Restaurant Manager at the sponsor restaurant in Wellington NSW. Condition 8107 was attached to the visa.

8. The delegate’s decision also records that the applicant was sent a notice of intention to consider cancellation (NOICC) on 24 January 2019. The applicant was informed that officers of the Department had conducted a site visit to the sponsor’s business premises at Brighton-Le-Sands on 14 August 2018, that on arrival the business was closed, and the officers ascertained that the business had ceased operating on or before 6 June 2018. On 20 August 2018, further checks revealed that the sponsor’s other restaurant located in Wellington NSW, had also been closed for over 12 months. On this basis it appeared that the applicant was in breach of condition 8107(3) as more than 90 days had passed since he ceased employment with the sponsor who most recently nominated him.

9. The applicant responded to the NOICC on 31 January 2019 and sought an extension of 5 days. He submitted that he was searching options and he was in the process of explaining his matter to some migration agents and lawyers. The applicant claimed that his sponsor had transferred the company management with the same ABN and ACN and he was not fully aware of this. The Department granted the applicant a further extension until 8 February 2019 to provide a response.

10. On 27 February 2019, the delegate found that the applicant had breached condition 8107(3)(b) and, when considering matters relevant to the discretion, decided that the visa should be cancelled. No further comment or submission had been received from the applicant.

11. On review, the Tribunal received at the hearing copies of the applicant’s academic qualifications including a certificate of completion of an English for Academic Purposes course in 2014; a certificate of completion of a Diploma of Management in November 2015; a certificate of completion of an Advanced Diploma of Business issued on 21 July 2016; an employment contract between the applicant and R & A Restaurants Pty Ltd commencing 15 July 2016; Notices of Assessment issued by the Australian Taxation Office for the applicant for the years ending 30 June 2016, 30 June 2017 and 30 June 2018; a Department letter addressed to R & A Restaurants Pty Ltd dated 20 August 2018 requesting records and/or information; and a Department letter to the applicant dated 19 November 2018. The Tribunal also had the opportunity to take evidence from the applicant at the hearing.

12. The applicant told the Tribunal that he had worked at his sponsor’s Wellington restaurant until mid-2017 and that he was requested to transfer to the Sydney restaurant operated by his sponsor, Larousse Indo French Restaurant. He was working there when around 2 August 2018 he returned to visit family in India for a month. Upon returning around 1 September 2018 he became aware that the Department had written to his employer, care of himself, to request information. The applicant sought advice from his accountant and lawyer and came to understand that Mr Ranjit Singh, the director of R & A Restaurants Pty Ltd, had resigned and then without the consent of the applicant, had nominated him and another employee as alternative directors. The applicant claimed that his lawyer and accountant had written to the Department on his behalf, and the Department had understood that he was a victim of fraud. The Tribunal discussed with the applicant that there was no record of the submissions having been received by the Department in their file forwarded to the Tribunal. In reply, the applicant said that the information was actually supplied to the Department in response to the letter of 20 August 2018, requesting records, a copy of which was submitted at the hearing. The applicant was asked why he did not provide this information again to the Department when he received the NOICC on 31 January 2019, and he responded that he was still seeking another sponsorship at this time.

13. The Tribunal asked the applicant from what day his accountant and lawyer were able to verify when he had been recorded as a director of R & A Restaurants Pty Ltd. The applicant suggested September 2018. The Tribunal was concerned that this is not consistent with the request for information he received from the Department dated 20 August 2018. The applicant then suggested it must have occurred while he was in India between 2 August 2018 and 1 September 2018.

14. The Tribunal asked the applicant what date he ceased working for R & A Restaurants Pty Ltd, and he said that it was in September 2018 and afterwards “the Department had closed our company.” The Tribunal suggested to the applicant that the Department did not have the power to close down a company. The Tribunal discussed with the applicant the letter he submitted dated 19 November 2018. This set out that R & A Restaurants Pty Ltd had a sanction imposed on it under s.140ZH of the Act, and that the sponsorship approval had been cancelled. Again the applicant was asked when he ceased working for R & A Restaurants Pty Ltd. He told the Tribunal that sometime in September 2018 when he learned that the previous director Ranjit Singh was not returning.

15. The Tribunal considered that the applicant’s evidence that he continued to work for R & A Restaurants Pty Ltd until around September 2018 was not consistent with the information contained in the delegate’s decision. This was that on 14 August 2018 a site visit was conducted at the sponsor’s business address located at 352 Bay Street Brighton-Le-Sands NSW, and on arrival the business was closed and officers observed that the business had been closed since at least 6 June 2018. The applicant suggested that R & A Restaurants Pty Ltd was trading at this time and that it may not have been open every day. The Tribunal also discussed with the applicant the Notice of Assessment for the year ending 30 June 2018 that he had submitted. This recorded that for this year he had an annual taxable income of $15,650. The contract of employment he had submitted with R & A Restaurants Pty Ltd recorded that he would be paid an annual salary of $58,000. The taxation records he submitted were not consistent with the business operating normally and the applicant working full time in accordance with his employment contract for the 2018 financial year. The applicant suggested that his employer may have paid in cash. He said that his Notice of Assessment was prepared on all the information that he had given to his accountant.

16. At the conclusion of the hearing the Tribunal provided the applicant with leave to submit further documents from his accountant and lawyer to support his evidence that he had made submissions to the Department when he returned from India. On 17 July 2019, the Tribunal received submissions from an agent appointed by the applicant and additional documents including a Change of Company Details form, email from Ms Nisha Sharma migration agent to the Department dated 1 October 2018 and Deed of Transfer of Shares in R & A Restaurants Pty Ltd.

17. The Tribunal also found some of the post hearing information difficult to reconcile with the evidence of the applicant at the hearing, particularly in relation to when he ceased work and when the transfer of ownership of R & A Restaurants Pty Ltd occurred. According to the post hearing submissions from the applicant’s agent the applicant worked at Larousse Indo French restaurant until July 2018. Then the director of the applicant’s former sponsor, Mr Ranjit Singh threatened the applicant as to where he should work and that he would cancel the sponsorship. The Form 484 Change in Company details records that the applicant was appointed a director of R & A Restaurants Pty Ltd as of 5 July 2018. The agent for the applicant also clarified that the applicant did not engage a representative to make submissions to the Department in response to their request for information dated 20 August 2018. Instead the applicant’s co-worker Mr Jagmeet Singh engaged Ms Nisha Sharma migration agent as the applicant could not at the time afford the costs of representation. The information disclosed in the email of Ms Sharma, dated 1 October 2018 to the Department, is that a share transfer agreement was signed by Mr Ranjit Singh and Mr Jagmeet Singh around 4 July 2018. No representations were made as to whether the applicant also signed the document. Ms Sharma also sets out that Mr Jagmeet Singh was compelled to sign the document by the former director on the threat of his 457 sponsorship being withdrawn.

18. In assessing the evidence overall the Tribunal does not accept the evidence of the applicant at the hearing that he continued to work for his sponsor after he returned from India in September 2018. This information is not consistent with the investigations by the Department, the submissions of his agent and supporting documents. The Notice of Assessment provided by the applicant for the year ending 30 June 2018 demonstrates to the Tribunal that the applicant was not working full time in this financial year. The Tribunal finds on the evidence that when he travelled to India on 1 August 2018 his sponsor’s business had ceased trading, and the applicant had ceased employment in the nominated position.

19. In relation to paragraph (3)(b) of condition 8107, the Tribunal finds on the evidence before it that when the applicant was sent the NOICC on 24 January 2019 he had ceased employment with R & A Restaurants Pty Ltd for more than 90 consecutive days. There is no evidence that any other nomination in relation to the applicant had been approved within 90 consecutive days, from 1 August 2018 when he ceased employment with R & A Restaurants Pty Ltd. The applicant in any event conceded to the Tribunal that he had ceased employment for more than 90 days when the Department’s NOICC was issued on 24 January 2019.

20. As more than 90 consecutive days have passed since the applicant ceased employment with R & A Restaurants Pty Ltd, the Tribunal finds that the applicant did not comply with condition 8107(3)(b).

21. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

22. There are no matters specified in the Act or Regulations that must be considered in 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) ‘General visa cancellation powers’.

23. The Tribunal has first considered the purpose of the applicant’s travel and stay in Australia, the circumstances in which the breach arose and whether he has a compelling need to remain in Australia. The applicant told the Tribunal that he had travelled to Australia on a Subclass 573 Student visa for the purposes of undertaking a Masters in Business. The Tribunal discussed with the applicant the academic qualifications that he had supplied, and he confirmed that he did not study at this level. He told the Tribunal that he thought that he needed to start with the basics. After consulting with an agent he had changed to vocational courses. The applicant submitted to the Tribunal that he needed to continue to stay in Australia in order to complete his Masters. The Tribunal questioned why the applicant had not gone on to this study at the completion of his Advanced Diploma. Instead he applied for a 457 visa for four years. The applicant responded that he had planned a bright future and that he wished to get some management experience before he completed a Masters degree. The applicant told the Tribunal that he had a compelling need to remain in Australia in order that he could complete his Masters degree. He came to Australia for his skilled future. After he had obtained some work experience he planned further study so that he could operate his own business in India. The Tribunal asked the applicant why he could not undertake a Masters degree in India. He responded that he had come to Australia to do higher study and if he returned with only the Diploma and Advanced Diploma it was no better than the Bachelor degree he had obtained in India. The Tribunal has considered the purpose of the 457 visa, it is a temporary visa. The purpose of the program is to enable employers to address labour shortages on a temporary basis by bringing in skilled workers where they cannot find an appropriately skilled Australian. The applicant is not currently in skilled employment, considerable time that has passed since the applicant has worked for his approved sponsor and there is no evidence to demonstrate that he will be the subject of an approved nomination in the foreseeable future. At the time the NOICC was issued the applicant had not applied to undertake further study or sought a student visa. It is considered that these factors weigh in favour of cancelling the visa.

24. The Tribunal has considered the applicant’s compliance with his visa conditions and there is no evidence that other than condition 8107(3)(b), the applicant has not complied with his visa conditions.

25. The Tribunal has considered the degree of hardship that may be caused financially, emotionally, psychologically or other hardship. The applicant’s agent has submitted that the applicant is experiencing all of these consequences, yet there is limited corroborative evidence. It is accepted that there will be consequences for the applicant. Financially it is clear from his Notices of Assessment that the applicant has not been earning in accordance with his contract of employment with his sponsor for much of the period of his visa. The applicant told the Tribunal that he was currently working as an Uber Eats driver. It is accepted that the applicant will have difficulty obtaining, and has been unsuccessful to date in obtaining, another 457 sponsorship if his visa is cancelled. However the applicant has submitted to the Tribunal that it is further study, not employment that is his main goal while remaining in Australia. The applicant claimed that his parents will be disappointed if he is forced to return to India without Masters qualification. The Tribunal accepts this will be emotionally hard for the applicant, although it is not satisfied that he still cannot go on to undertake this study in his home country or elsewhere in the future. There is also no evidence to indicate that the applicant had a reasonable expectation that he could remain in Australia permanently.

26. The Tribunal has considered the circumstances in which the cancellation arose. This is because the applicant was not able to secure another nomination within 90 days of ceasing to work for his former sponsor. The Tribunal has considered the applicant’s claims that he was unaware of the transfer of the company ownership. It is however clear on the evidence that there were problems with his sponsor’s business prior to the applicant ceasing work. The Tribunal queried why the applicant did not take steps to resume his study or secure a further position earlier. The applicant conceded in his submissions to the Tribunal that the restaurant was not consistently trading around the time of his departure to India in August 2018. His Notice of Assessment for the year ending 30 June 2018 records that he was not earning a full-time wage; in fact the applicant earned approximately a quarter of his annual salary. The submissions of the applicant’s agent suggest that Ranjit Singh had made threats to cancel his sponsorship. There is little weight that the Tribunal can give this submission as the applicant provided no such evidence at the hearing. Although the applicant told the Tribunal that he had explained to the Department the change in ownership of his sponsor via his lawyer and accountant in 2018 in response to the Department’s request for information dated 20 August 2018, the post hearing submissions confirm that this was not the case. The applicant’s failure to report his former employer’s conduct is of some concern for the Tribunal. While it has given the applicant the benefit of the doubt that he did not himself sign the share transfer agreement, the Tribunal has difficulty accepting that the applicant was unaware of the change in ownership of his sponsor’s business that took place prior to his travel to India on 1 August 2018, given that the documents supplied by the applicant to the Tribunal record that this took place in early July 2018. It considers that the applicant has not been entirely transparent in the circumstances that led to him ceasing employment. It is also of concern for the Tribunal that he ceased working as a restaurant manager with R & A Restaurants Pty Ltd in August 2018, several months before the Department sent him a NOICC on 24 January 2019. The Tribunal has considered the reasons, as submitted by the applicant and his representative, that the applicant had been unable to find employment while under consideration of cancellation and awaiting Tribunal review. There was however a period from his return from India in September 2018 and prior to the NOICC being issued on 24 January 2019, when the applicant’s visa was not cancelled or considered for cancellation, when he could have secured further employment and perhaps nomination.

1. In respect of the applicant’s past and present behaviour towards the Department, it is of some concern that the applicant did not approach the Department regarding his failure to report his former sponsor’s conduct. The applicant has also failed to respond to notices issued to him by the Department, including the request for information and the NOICC. However the Tribunal is not satisfied that the applicant has been deliberately uncooperative with the Department and does not consider that the applicant’s behaviour towards the Department impacts upon the cancellation decision.

2. The applicant claimed to be single, and he has no dependants. There is no information that there a person in Australia whose visa would, or may be cancelled under s.140 of the Act. There is no weight placed on this factor.

3. The Tribunal has next considered the mandatory legal consequences of the cancellation and whether indefinite detention is a possible consequence of cancellation. The Tribunal accepts that if the visa is cancelled the applicant will be affected by s. 48 of the Act and he will have limited options for making a valid visa application in Australia without the intervention of the Minister. If the visa is cancelled the applicant will not have to depart Australia immediately and he can apply for a further bridging visa to arrange his departure. He will only be subject to detention if he does not continue to hold a visa to remain lawfully in Australia or if he refuses to depart voluntarily. Indefinite detention is therefore not a necessary consequence of the visa cancellation. Although it is accepted it will have legal consequences for the applicant, the Tribunal gives this limited weight in favour of not cancelling the visa.

4. The applicant told the Tribunal that he was concerned about returning to India and disappointing his parents but he did not fear any harm from anyone or for any reason on return. There is no evidence of any international obligations, including non-refoulement that would be breached as a result of the cancellation.

5. There are no other relevant matters.

6. The Tribunal has considered all of the evidence and relevant circumstances. It accepts that the applicant wishes to remain in Australia and possibly undertake further study, however this is not the purpose of the 457 visa. It accepts that his sponsor had their approval cancelled. This is not however the reason the applicant breached condition 8107. He breached this condition because he failed to find another approved sponsor after he ceased employment in August 2018. He is still not the subject of an approved nomination and he has not worked in skilled employment for a considerable period. There is also no evidence to indicate that he will be the subject of an approved nomination in the foreseeable future. The Tribunal’s concerns about these factors are not outweighed by the circumstances in favour of not cancelling the visa.

7. Overall the Tribunal is of the view, in the circumstances of the applicant’s case that the evidence weighs in favour of cancelling the visa.

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

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

   Penelope Hunter
   Member