Sachdeva (Migration)

[2018] AATA 5852

Sachdeva (Migration) [2018] AATA 5852 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh Sachdeva

CASE NUMBER:  1700907

HOME AFFAIRS REFERENCE(S):           BCC2016/3296400

MEMBER:Bridget Cullen

DATE:20 December 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 20 December 2018 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Café or Restaurant Manager – employment terminated – sponsor sold business – circumstances out of applicant’s control – meaning of ‘genuine effort’ – decision under review set aside

LEGISLATION
Migration Act 1958, s 137
Migration Regulations 1994, r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 January 2017 to cancel the 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 under s.137Q(2) on the basis that the applicant's employment referred to in the relevant employment nomination was terminated within the required two year period and the applicant was unable to satisfy the delegate that he had made a genuine effort to be engaged in the employment for the required period.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared by telephone before the Tribunal on 9 August 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. 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 set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

   Does the ground for cancellation exist?

7. 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.

8. The applicant has provided to the Tribunal a copy of the delegate's record of decision to cancel the visa under s.137Q of the Act.

9. The applicant was sponsored to be employed as a Café or Restaurant Manager (ANZSCO 141111) by NK Haider Pty Ltd, trading as Delhi 6 Indian Cuisine in Waterford West located in Queensland. The visa was granted on 15 May 2015, and the applicant worked in the role, for approximately 18 months until his employment was terminated on 30 November 2015.

10. The applicant says that his role with his employer was terminated following the sale of the business by NK Haider Pty Ltd.   The delegate’s decision record reflects that on 10 May 2016, the Department received written information that the Delhi 6 Indian Cuisine business operated by NK Haider Pty Ltd was sold, and that the applicant had not been working for the business since 30 November 2015.

11. The delegate’s decision record also reflects that the Delhi 6 Indian Cuisine business was sold on 19 October 2015, and the business name was cancelled the same day.  Further, the sale of the business was settled on 30 November 2015.

12. The delegate considered that the applicant did not comply with section 137(Q)(2)(ii) because the employment referred to in the relevant employer nomination with NK Haider Pty Ltd as a full-time Café or Restaurant Manage was terminated within the period prescribed by the regulations of 2-years from the grant of the visa on 15 May 2015.

13. The applicant says that s.137Q(2)(b) does not impose upon him a requirement to find further alternative employment in a designated regional area. Rather, he says that he was obligated to make a genuine effort to complete the two year period with NK Haider Pty Ltd, and that his failure to do so was because of a situation beyond his control.

14. The Tribunal accepts that NK Haider's decision to sell its business, and the consequential termination of the applicant's employment, was outside of the applicant's control.

15. At the hearing, and in his written submissions, the applicant's representative has drawn the Tribunal's attention to the decision in Parekh (Migration) [2018] AATA 2713 (23 May 2018). In Parekh, the Tribunal (at [67]) was called upon to interpret s.137Q(2), and to determine whether the “employment” referred to in s.137Q(2)(b) is the employment referred to in the relevant employer nomination.

16. As a matter of statutory construction, the phrase “the employment” in s.137Q(2)(a)(i), in combination with the phrase “that employment” in s.137Q(2)(a)(ii) and s.137Q(2)(b), suggests each reference to “employment” in s.137Q(2) is a reference to the employment to which the relevant employer nomination relates.

17. This interpretation is supported by stated intention of the provision which was introduced by the Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001 and is reflected in the Department's current Procedural Instruction – Visa cancelation instructions: Regional sponsored employment visas at 'Genuine effort':

    “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.”

18. In the Tribunal's view, the applicant's representative's submission about the requirement in s.137Q(2)(b) is correct. Further, the Tribunal agrees with the representative's submission that making a genuine effort to be engaged in a further employment arrangement within a designated regional area is not a requirement of s.137Q(2).

19. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant's visa does not arise.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant's Subclass 187 - Regional Sponsored Migration Scheme visa.

    Bridget Cullen

    
    

    Member