Rimpal (Migration)

[2019] AATA 1515

Rimpal (Migration) [2019] AATA 1515 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rimpal
Mr Gurmail Singh
Mr Divgun Virk

CASE NUMBER:  1822163

HOME AFFAIRS REFERENCE(S):           bcc2018/1620027

MEMBER:Bridget Cullen

DATE:8 May 2019

PLACE OF DECISION:  Brisbane

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

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

Statement made on 08 May 2019 at 7:53pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – work only in occupation listed in approved nomination – Corporate Services Manager – Fair Work Ombudsman investigation – lack of procedural fairness – classified as Independent Contractor – credible witness – documentary evidence before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 July 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that on the basis that the first-named applicant ('the applicant') had not complied with condition 8107(3)(a)(i) of her Subclass 457 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second or third named applicants.

4. The applicants appeared before the Tribunal on 7 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kesomi Mahe Tavake, the director of Ocenia Friendly Brothers Pty Ltd ATF The Tavake’s Family Trust (the Applicant’s sponsor), and from Mr Parminder Singh, the Applicant’s brother.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107(3)(a)(i) attached to the applicant's visa.

9. This condition requires that the Applicant must work only in a position in the business of her approved standard business sponsor or an associated entity of the sponsor. The delegate cancelled the Applicant's visa under s.116(1)(b) of the Act because the delegate considered that she breached condition 8107(3)(a)(i), because the delegate formed the view that she was not employed by her sponsor in the position of Corporate Services Manager (ANZSCO 132111), which is the occupation listed in the most recently approved nomination for the visa holder. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to remain cancelled.

10. The Applicant was nominated in relation to a standard business sponsorship by Ocenia Friendly Brothers Pty Ltd ATF The Tavake’s Family Trust, in the position of Corporate Services Manager. Ocenia operates a business delivering parcels for Australia Post. Ocenia employs the Applicant, and then engages independent contractors to perform deliveries on a piece work basis.  The applicant’s husband, Mr Gurmail Singh, is one of these delivery independent contractors.  At the time the sponsorship was approved, on 14 July 2014, Ocenia operated from a location [in Boondall].

11. The Applicant and Ocenia’s Director, Mr Tavake, both gave evidence that on 1 June 2017, Ocenia relocated to a dwelling [in Taigum], which Ocenia continues to operate from.  The reason for the move from [Boondall] was that it was Mr Tavake’s former matrimonial home, and he had separated from his wife. 

12. The evidence from Mr Tavake, and from the Applicant, is that Mr Tavake’s separation and subsequent divorce from acrimonious.  Around this time, Mr Tavake was involved in a dispute about the matrimonial asset pool with his ex-wife. 

13. It is not clear to the Tribunal how the Fair Work Ombudsman became involved in this matter.  The Applicant has given evidence that Mr Tavake’s ex-wife attempted to enjoin her in efforts to back up claims that the ex-wife made to the Fair Work Ombudsman in relation to Mr Tavake’s business.  The Applicant says that the ex-wife told her that she would assist her, if she provided information to the Fair Work Ombudsman.  The Applicant formed the view that Mr Tavake’s ex-wife was looking to create difficulties for him during a time of matrimonial turbulence. 

14. The Applicant was a credible witness, who told a consistent story, which aligned with the information she had given the Department.  The Tribunal accepts that the Applicant was approached by Mr Tavake’s ex-wife.

15. Regardless of the reason that the Fair Work Ombudsman became involved, on 23 June 2017, they conducted a site investigation.  On 5 June 2017, Ocenia (the sponsor) had lodged an Employer Nomination Scheme (ENS) (subclass 186) Nomination application to nominate the Applicant, who lodged her subclass 186 visa application with the Department on the same day.

16. It appears that the purpose of the Fair Work Ombudsman’s investigation was to ascertain the nature of the work the Applicant performed in her role with Ocenia. The Fair Work Ombudsman’s investigation concluded with a finding that the Applicant was employed as an “Independent Contractor” to a business with a different Australian Business Number from Ocenia, and that the Applicant was not working as a Corporate Services Manager.  The Fair Work Ombudsman formed the view that the Applicant was driving her own van, making deliveries for piece rates per delivery.  The Fair Work Ombudsman formed the view based on “submitted invoices for several delivered parcels” that reflected piece rates, and was unable to determine the Applicant’s annual salary as a consequence.

17. The delegate placed significant weight on the investigation conducted by the Fair Work Ombudsman in forming a view that the Applicant was not employed by her sponsor on a salaried basis, and was working in a different capacity.   Having heard the evidence of the Applicant, her husband Mr Gurmail Singh, and Mr Tavake, along with having the opportunity to review additional documentary evidence not before the Department or the Fair Work Ombudsman at the time of investigation, the Tribunal has reached a different view.

18. The Tribunal finds that the Applicant is, and was working in the position of Corporate Services Manager, at the time of the investigation on 23 June 2017.  Whilst the Tribunal is not critical of the investigation conducted, the information before the Tribunal in relation to the investigation is limited and scant in detail.

19. Firstly, it is unclear why the site visit was made to an address [in Geebung].  Presumably, it is the address that was given to the Fair Work Ombudsman.  The Applicant and Mr Tavake both gave evidence that Ocenia had never conducted business from [Geebung].  There is no documentary evidence before the Tribunal indicating that this address was used by Ocenia.  Mr Tavake told the Tribunal that he knows the address, as it is his church.  He surmises that his ex-wife gave this address to the Fair Work Ombudsman to cause him embarrassment.  The Tribunal has conducted a Google Map search, which confirms that the address [in Geebung] is occupied by a church. 

20. Minimally, the investigator should have taken steps to determine, having arrived at what is obviously a church, whether the correct address for the business had been established.  There is no information before the Tribunal suggesting that any steps were taken.  Neither the Applicant, her husband, or Mr Tavake were interviewed as part of the investigation process.  The investigation was then concluded on the basis of the invoices that had been provided, and the site visit to the church.  The Applicant is unable to comment on the invoices and information provided to the Ombudsman, as she has not seen it.  This information is also not before the Tribunal.  As such, the Tribunal is left with the conclusion that was reached following the investigation, but none of the information that led the investigator to form the view.

21. This lack of procedural fairness is problematic.  This is particularly so where the Applicant offers an alternative explanation, which is corroborated by the documentary evidence now in front of the Tribunal. 

22. The Applicant’s husband, is also employed by Mr Tavake.  He is an independent contractor, and he delivers parcels for Mr Tavake.  The van that he uses is jointly owned by himself and the Applicant.  The Applicant explains that they jointly borrowed money to finance the purchase of the vehicle, but it is registered to her husband, Mr Gurmail Singh.  

23. The Applicant and her husband maintain joint bank accounts, yet each utilise one account on a separate basis.  The Applicant uses a NAB account, and Mr Singh uses a CBA account.  The Tribunal has been provided with copies of bank account statements that support a finding that the Applicant has been paid a salary by Ocenia, and Mr Singh has been paid varying amounts for piece rate delivery work.  The Tribunal has also been provided with a copy of the invoices issued by Mr Singh in relation to the piece work delivery, which correspond with the bank records.  The deposits made to both accounts correspond with further banking records that have been provided for Ocenia, from an ANZ account.  The Tribunal concludes that Ocenia has made payments to the Applicant that correspond to wages, and payments to Mr Singh that correspond with piece work.

24. The Applicant was able to explain to the Tribunal the work she performs in her role, from an office setting.  The Tribunal accepts that she has worked in the office, and is not involved in deliveries.

25. The delegate raised concerns about not being able to identify who the contributor was for superannuation payments made to the Applicant.  The Tribunal has been provided with a copy of Ocenia’s bank statements indicating that it made the payments directly to the Applicant’s superannuation account with Essential Super.

26. The delegate also raised concerns that the Applicant amended her year ending 30 June 2016 and 30 June 2017 Tax Assessments, after the time of the Fair Work Ombudsman’s investigation.  Prior to amendment, the taxable income reflected fell below the base salary approved at the nomination stage. The Applicant has explained, and the Tribunal accepts, that this error came to her attention when flagged by the registered migration agent handing the subclass 186 application.  This is supported by a letter from the accountant who prepared the Notice of Assessment, explaining that the error was made by using the net, rather than gross amount, from bank payments when preparing the assessment.  The Tribunal accepts this explanation.

27. The Tribunal finds that the applicant was working, and is still working, in her nominated occupation of Corporate Services Manager (ANZSCO 132111).  It therefore follows that the Tribunal finds that she has not breached condition 8107(3)(a)(i) of her visa.

28. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

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

    Bridget Cullen
    Member