Sandhu (Migration)

[2019] AATA 2452

Sandhu (Migration) [2019] AATA 2452 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harminder Singh Sandhu
Mrs Rachhpal Kaur Sandhu
Master Aryaveer Singh Sandhu

CASE NUMBER:  1710951

HOME AFFAIRS REFERENCE(S):           BCC2017/910660

MEMBER:C. Packer

DATE:1 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision 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 01 July 2019 at 4:28pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – s 375A certificate – obligation to provide particulars of information – ground for cancellation – ceased to have a genuine intention to perform occupation – Transport Company Manager – Departmental site visit – not working fulltime or at all in the nominated occupation – sham salary arrangement – non-compliance with visa conditions – consideration of discretion – purpose of stay – not performing the tasks of nominated occupation – decline of sponsor’s business – beyond applicant’s control – failure to seek and obtain alternative sponsorship – no formal job offer – best interest of child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
BCR16 v MIBP (2017) 248 FCR 456
Burton v MIMIA [2005] FCA 1455
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(g) on the basis that the applicant has ceased to have a genuine intention to perform that occupation (regulation 2.43(1)(kb)(ii)). 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 them.

4. The applicants appeared before the Tribunal by videolink on 18 June 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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, FINDINGS

1. 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)(g) and r.2.43(1)(kb)(ii). 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?

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 and in the present case, the ground in r.2.43(1)(kb)(ii)) is relevant:

   (kb)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) - that, despite the grant of the visa, the Minister is satisfied that:

   (i)…

   (ii)  the holder has ceased to have a genuine intention to perform that occupation;   

2. On 3 October 2013 the business Kool Future Pty Ltd was approved as a standard business sponsor for three years, and that approval expired on 3 October 2016. On 15 October 2013 a business nomination for the nominated occupation of Transport Company Manager [ANZSCO 149413] was approved. The ANZSCO Dictionary shows that Unit group 1494 Transport Services Managers organise and control the buying and selling of vehicles for rental agencies and coordinate the leasing of vehicles, the operations of railway stations, and the operations of enterprises that operate fleets of vehicles to transport goods and passengers. Tasks Include:

• organising the purchase and maintenance of transport vehicles, equipment and fuel 

• liaising with clients to determine requirements and providing customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints 

• receiving orders and bookings, and planning and implementing transportation schedules 

• ensuring goods are stored and transported in conditions that will maintain their quality 

• arranging collection and delivery of vehicles and goods 

• maintaining business records and preparing operational statements and reports 

• coordinating activities associated with the arrival, departure, loading and unloading of trains 

• ensuring compliance with occupational health and safety regulations

Additionally, the Transport Company Manager [ANZSCO 149413] organises and controls the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. Registration or licensing may be required.

1. Departmental systems show the applicant applied for a 186 visa on 9 November 2015 with the same sponsor/nominator, and withdrew that application on 22 May 2017.

10.  The Department’s Notice of Intention to Consider Cancellation letter dated 1 May 2017 shows the Department undertook a site visit at the business Kool Future Pty Ltd located inside a restaurant “Aussie Dera” at 80 Sydney Road, Coburg. As a result of the visit and the officer’s interview of the applicant and Mr Usman Naseer, the delegate considered the information indicated the applicant appeared to have ceased to have a genuine intention to perform the occupation of full time Transport Company Manager.

11. The applicant responded to the Department’s NOICC letter in a submission dated 7 May 2017 with attached documents and information. On 19 May 2017 the delegate cancelled the visa under s.116(1)(g) Migration Act because a prescribed ground listed in r.2.43(1)(kb)(ii) existed, on the basis that: the nominated position has ceased to exist and there is no longer a genuine need for someone to work fulltime in the position. The delegate found that any intention the visa holder may claim to perform the nominated occupation, not to be a genuine intention.

12.  In the delegate’s decision the delegate relied on the site visit on 14 February 2017 and subsequent site visit report. That report was the subject of a s.375A certificate dated 8 June 2017 (under s.375A, the Secretary of the Department may certify that certain information is only to be disclosed to the Tribunal). The certificate states that information contained in the listed folios of the Department’s file BCC2017/910660 should not be disclosed. The effect of such a certification, if valid, is that the Tribunal is prohibited from disclosing the document and/or information in it to the applicant. However, in Burton v MIMIA, Wilcox J held that a valid s.375A certificate does not override the obligation to provide particulars of information under s.359A(1).  Accordingly, in a s.359A letter dated 25 March 2019 the Tribunal provided all particulars of information that appear in those folios of the Department’s file which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal’s letter that attached a copy of the certificate did not, however, disclose information personal to the sponsor or other people.

13.  The Tribunal’s letter dated 25 March 2019 stated in part:

The particulars of the information are:

1.     The Department’s site visit report shows officers prepared a report following their attendance at the business address of Kool Future Pty Ltd on 14 February 2017.

Key information from the report shows:

Departmental officers MB, MG and VB attended the nominated address for Kool Future Pty Ltd, located inside restaurant, 'Aussie Dera' at 80 Sydney Rd, Coburg VIC. Officers rand the door bell, with no answer. Officers went to the back of the building, which was padlocked. Officers called v/holder at 11:02. HS answered the phone and ID was taken over phone. MB asked if HS was at work today. HS stated he was at the airport dropping his father in law off and would be returning to work at approx. 2pm. HS stated that his working hours are Monday to Friday, 9am to 5pm. HS confirmed his work address as 80 Sydney Rd, Coburg. MB advised this is the second time officers have attended his place of work and both times he has not been there. MB- Who does your role when you are not there? HS- I have 2 bosses. One is away today as his family just came back from Pakistan, don't know where the other one is. Boss names are Usman Naseer and Iftikar Ali. MB- Name of company? HS- Kool Futures Pty Ltd. MB thanks HS for time and call ended at 11:14.

Officers returned to restaurant at 14:48. Officers drove past the back of the business first and noted the HS standing in the back smoking and talking on the phone. Officers rang doorbell of business at 14:53. HS came out and answered the door. MB introduced himself and Introductions/ID was shown by all officers. HS guided officers through the restaurant dining room to offices located at the back. MB asked to see where HS's office is. HS directed officers to a desk in an open area with a printed sign demonstrating HS's name. HS consented to DVR at 14:55. No interpreter required. MB explained the purpose of the visit.

Of his role, HS stated;

·He is a Transport Manger.

·He does rostering first of all.

·He lodged accident files.

·The business is a transport and taxi business.

MB asked about the difference. HS stated that the business has 6 private cars which they hire to private renters. HS stated that the cars are parked at his bosses' house. HS stated that the restaurant uses a station wagon. HS stated the other cars are Mercedes, dodge and ford falcons. Of the taxi company, HS stated;

·The company has only 2 taxis.

·Both on the road at the moment.

·Drivers are [named]

·They drive 7 days a week. Sometimes morning, sometimes night.

·Mostly they start at 4pm.

·There is a roster for drivers. (HS unable to find current roster to show officers)

·The taxi drivers rent the vehicles from KOOL FUTURES.

·The taxi drivers hire the 'private cars' to go home. The 'private car' rental service is very rarely used.

·The 'private car' rental service is only used by friends for cash- no records kept.

·HS could not really explain the 'private car' service.

Of his time with his employer, HS stated;

·He stated working in Aug 2013.

·The location was 390 Victoria Street, Brunswick.

·The company had 30 taxis.

·The company went from 30 taxis to 2 last year, due to introduction of Uber.

·The boss has a plan to purchase Uber cars but nothing is in place and no timeframe has been decided.

MB asked how advertising occurs. HS stated that he submits ads on gumtree for drivers. MB asked for evidence. HS was only able to show officers an advert places 21 weeks ago. The mobile number [shown] was displayed on the advert; HS stated that this is his number.

MB again asked about his daily duties. HS stated;

·He files accident reports.

·The last accident was on 28/01/2017.

·HS showed officers other accident files he works on. Officers noted that the files were from 2014.

·HS was unable to show officers current accident files.

·After the accident form is filled out, the vehicle goes to the panel beater for a quote.

·The panel beater is Fine Line Auto repairs- 390 Victoria Street, -Brunswick. His contact is Naz. (Officers spoke with the owner of Fine Line Auto repairs who stated that he briefly rented an office to KOOL FUTURES years ago and does not have their contact details.)

·HS stated that the vehicle that has had an accident on 28/01/2017 is still driving on the road.

·The boss, Usman, deals directly with Naz at fine Line.

·HS stated his other duties include arranging drivers and collecting the money.

·Rental money is collected from the taxi drivers once a week.

·Driver comes with money and taxi cab charge receipts.

·Both drivers pay $1500/month to rent the cabs.

·HS stated that if a fine comes, Citylink/Eastlink, he logs online and changes the drivers details. It's the drivers responsibility to pay their own fines.

·HS stated that he conducts safety checks on taxis but could not provide any evidence/record of this.

·HS showed officers a 'safety record book' that was dated early 2015.

·HS stated that he sometimes speaks with a solicitor if the taxi driver has an accident and has to go to court.

MB asked if HS has a taxi drivers licence. HS stated yes but he hasn't driven a taxi since 2013. HS was unable to recall his Taxi ID number. HS stated that he was previously a taxi driver for a private owner in Caroline Street. HS stated that he has never driven for Kool Futures. HS stated that Kool Futures left the Victoria Street address in March/April 2015 and had 12-15 drivers. HS stated that 4 months ago the company went to 2 drivers. MB put to HS that his role does not appear to be a full time required position. HS stated that he works on accident files from 2012-2017 and this takes up his time. (HS was unable to show what it is he actually does with these files and MB stated that this is not a duty that is consistent with a full time role.)

HS stated that "to be honest" the company has only 2 taxis and his boss deals with the restaurant and the home packages and in the future he may be doing duties for the home package business.

HS stated that the company may purchase trucks for his property development business, in which case he will be in charge of these trucks. HS stated that his boss will purchase the trucks but as the property business is new, there are no plans as yet to buy these. HS then talked about his boss possibly purchasing Uber vehicles, but no plans have been made as yet.

HS pay: $1848 per fortnightly- EFT; Payslips are given every 3-6 months;       HS consented to show officers his pay going into his account. MB put to HS that there appeared to be large cash withdraws immediately after each pay. FIS stated that he used his personal funds to pay cab charge amounts to drivers on behalf of his boss. MB asked for a record of the payments made to the drivers, HS stated that he does not write that down. Host plus pays his superannuation.

MG asked HS questions regarding the taxi drivers. HS stated;

·The 2 drivers work 12 hour shifts, 7 days a week.

·The drivers drive during the busy periods, morning and late afternoon/night.

·MG put to HS that there does not appear to be a roster given that the 2 drivers rent the cabs and make their own times.

MB asked how HS checks the licencing for drivers. HS stated that he gets the details by looking at the validity date on the driver's card. No evidence provided. MB asked how work rights are checked. HS stated that he doesn't check, he just asks them what there availability is. MB put to HS that visa/work rights should be checked. HS again stated that he asks the driver what visa they are on. HS then stated that no checks are done to look at drivers work rights. MB informed HS about VEVO and stated that this would be discussed with the sponsor.

MB asked about receipts taken from the driver. HS stated they are kept in his bosses' office. HS confirmed that the driver keeps all of the money they make and they simply rent their cabs from Kool Futures. MG asked again about the 'Private cars'. HS stated that he rents the cars out to his friends for cash and no record is kept. MG put to HS that the ATO may be interested in this information, given this is a cash transaction, yet the company is claiming the cars to be part of their business.

HS asked about the process for his application. MB explained that officers will write a report and send this to the processing centre. MB provided a business card and thanked HS for his time. DVR ceased at 16:10.

Officers spoke to director Usman Naseer (UN) on the way out. MB provided UN with a 457 obligations fact sheet, and Inspector fact sheet and a VEVO fact sheet. MB advised that HS did not appear to be aware of VEVO and expressed the importance of checking work rights. UN discussed the business and how due to Uber, the company has downsized considerably. UN advised that he had developed an App called Taximan, similar to Uber, but this has not taken off as yet. UN stated that HS was an important member of the team and looks after all of his rostering and accident claims. UN stated that he is busy starting a property development company and relies on HS. MB asked if HS is doing any work to help with the property development business. UN stated that as the taxi business is winding down, HS is helping him with property contracts and property brochures. UN stated that KB does the listings for the properties and in the future, HS will be responsible for filing the contracts with the appropriate stakeholders. MB thanked UN for his time and officers left the business.

This information is relevant to the review because it appears to show that you were not working fulltime or at all in the nominated occupation in the business. This is because:

·The business office, at the rear of a restaurant, was rarely used by you or the business.

·You described the business as comprising two taxis that were rented by the drivers and they made their own times.

·You could show no roster of drivers.

·You could show no record of payments made to drivers, including the ‘cab charge amounts to drivers on behalf of his boss’ that you claimed were paid out of your personal bank account.

·You could not explain how the private car service operated and had no records for it and no receipts and they were not recorded for ATO purposes.

·You could show no recent advertising other than an ad in Gumtree 21 weeks before.

·You could show no current accident files, the only ones being on 28 January 2017 and in 2014, and you were unable to show how these took up your time or what you did with them.

·You could show no evidence or record of safety checks on vehicles, and a safety record book was dated early 2015.

This information is relevant to the review because it may show that your paid salary was a sham because while your bank account showed you were paid $1848 per fortnightly, there were also large cash withdraws immediately after each pay, and your explanation that these were ‘cab charge amounts to drivers on behalf of his boss’ is not believable.

This information is relevant to the review because it may show that the original business office at a Victoria street address was an office briefly rented out to Kool Futures Pty Ltd years before by a panel beater, and was not a genuine business office used by the business up to March/April 2015 as you claimed.

This information is relevant to the review because it appears to show that the director stated the business had “downsized considerably”; and that your tasks were to look after all of his rostering and accident claims- albeit these were tasks you were unable to evidence.

This information is relevant to the review because it appears to show that the director stated as the taxi business is winding down, you were helping him with other undocumented work such as property contracts and property brochures.

This information is relevant to the review because it appears to show that you have not complied with visa conditions since the grant of your 457 visa, and this may be relevant in a consideration of whether to cancel your visa

2.     Kool Future Pty Ltd is no longer an approved standard business sponsor and there is no approved business nomination that concerns you. Movement records show your 457 visa would have ceased on 15 October 2017 and so should this review be successful, you will nonetheless not hold a 457 visa. You withdrew your 186 visa application on 22 May 2017.

3.     You advised the Tribunal on 23 April 2018 that you have a residential address in W.A., and on 18 October 2018 another change of residential address also in W.A.

This information is relevant to the review because it appears to show you have not worked for the sponsor for some time, and do not intend to work for the sponsor in the future, and the sponsor is no longer an approved sponsor- and these circumstances may be relevant in a consideration of your past and current circumstances and whether to cancel your visa.

If we rely on this information in making our decision, we may find there is a ground for cancelling your 457 visa under s.116(1)(g) and the prescribed grounds in r.2.43(1)(kb)(ii) and (iii):

(ii)  the holder has ceased to have a genuine intention to perform that occupation;

(iii)  the position associated with the nominated occupation is not genuine;

and that your visa should be cancelled.

14.  The applicant who resides in W.A. responded on 29 April 2019 and provided a submission dated 28 April 2019 and supporting documents. The submission noted that the applicant had an employment offer for the position of Transport Company Manager made by Mamoon Pty Ltd trading as Ezi Ryde in Victoria.

15.  The Tribunal held a hearing on 18 June 2019 and the applicants attended by videolink from Perth. The representative attended in the Melbourne office. The videolink reception was good throughout. A Hindi interpreter assisted and the applicant stated he understood the interpreter.

16.  At the hearing the Tribunal discussed the s.375A certificate dated 8 June 2017. The Tribunal pointed out that the information in the documents the subject of the certificate (with personal and third party information omitted) had been put to the applicant in the Tribunal letter of 25 March 2019. The applicant made no comments about the certificate or the Tribunal’s discussion of it.

17.  A further submission was received on 18 June 2019 and this advised the applicant had a new employment offer for the position of Transport Company Manager made by Capital City Taxis and the parties were currently negotiating the employment terms and conditions and collating the necessary documents with a potential to sponsor and nominate the applicant for a 482 visa.

The business at the time of the site visit on 14 February 2017

18.  By early 2017 the business sponsor, Kool Future Pty Ltd, was a small business with two directors (Usman Naseer and Iftikhar Ali). On 14 February 2017 the Department conducted a site visit to the nominated address for Kool Future Pty Ltd, located inside restaurant 'Aussie Dera' at Coburg. Photos show a small office setup. The officers prepared a site visit report following their visit. The officers were working in their usual course of duties and an officer then prepared a formal and detailed report, and for these reasons I accept the accuracy of the report and of the observations made by the officers. 

19.  Key points of the site visit and subsequent report include:

• The business office, at the rear of a restaurant, although set up, appeared to be rarely used by the applicant or the business.

• He described the business as comprising two taxis that were rented by the drivers and they made their own times.

• He could show no roster of drivers.

• He could show no record of payments made to drivers, including the ‘cab charge amounts to drivers on behalf of his boss’ that he claimed were paid out of his personal bank account.

• He could not explain how the private car service operated and had no records for it and no receipts and they were not recorded for ATO purposes.

• He could show no recent advertising other than an ad in Gumtree 21 weeks before.

• He could show no current accident files, the only ones being on 28 January 2017 and in 2014, and he was unable to show how these took up his time or what he did with them.

• He could show no evidence or record of safety checks on vehicles, and a safety record book was dated early 2015.

• His bank account showed he was paid $1848 per fortnightly, but there were also large cash withdraws immediately after each pay, and his explanation had been that these were ‘cab charge amounts to drivers on behalf of his boss’.

• The director stated the business had “downsized considerably”; and that the applicant’s tasks were to look after all of the rostering and accident claims.

20.  In submissions and at the hearing the applicant discussed the decline of the business and key points are:

• At its peak the business had operated 30 taxis and had a need to employ the applicant as a Transport Company Manager. The position managed the day-to-day management of the business in which there were 60 permanent drivers and about 10 casuals.

• However, due to regulatory changes in the taxi industry and with the introduction of Uber, from 2016 there had been a decline in taxi services that led to a gradual decrease in taxis managed by the business.

• By February 2017 the business operated just two taxis, and there were six ‘private’ cars. The two taxis were rented to two drivers but he assigned the drivers’ hours, and arranged extra drivers as per the requirement of the current drivers.

• Nonetheless, in early 2017 the business: was waiting to see if Uber was found to be illegal; had developed the Taximan app to assist business growth; the business had new partnership; the business anticipated intense growth.

• Due to the advent of Uber the business crashed and ceased actively trading in the beginning of 2017-2018 financial year. However, this was beyond the applicant’s control.

• He continued to be employed and received his usual wage until his visa was cancelled.

21.  In submissions and at the hearing the applicant discussed the site visit and key points are:

• There were reasons for him not being present at work at the times of the officers’ visits, and for the bosses not being present. That day he had had half a day off.

• At the time he had been working 9 to 5, Monday to Friday, and there had been enough work for him. 

• That day he had been working on a task to review files for the period 2012 to 2015 and to prepare reports on unclaimed accidents. That is why files from 2012-2015 were on his desk. The officers did not ask him about files for the period 2016 to 2017, even though those files had also been on his desk.

• His tasks at the time included preparing reports on: pay; fleet performance; earnings; mechanical; accident; monitoring and billing; compliance with Victorian regulations.

• He also regularly inspected the vehicles and performed safety checks. He had been unable to evidence this as the records were kept in the respective taxis so that the drivers could record issues.

• When he had been asked to produce the cab charges slips he showed them to the officers and they had been happy about that issue. The slips were located in a safe in the owner’s office.

• He had correctly described six vehicles private as they are owned by the Director who only allowed his family and close friends to use them.

• He did not show current ads for drivers because the business did not need more drivers.

• He had not said that he undertook any other tasks for the owner.

22.  The applicant provided to the Tribunal other information to support his claim to have been working full-time in the nominated occupation, and this information included documents:

• Payroll advice from 2013 to May 2017

• Photos of the office

• Accident claim forms: 17/1/2016; 29/1/2016; 31/1/2016; 28/1/2017; 10/2/2017 – showing five only from January 2016 to January 2017

• PAYG payment summary: 2014 ($43k); 2015 ($60k); 2016 ($60k); 2017 ($54k);  and tax return for 2017

• ATO Notice of assessments, 2014, 2015, 2016, 2018 ($10,265)

• The business “Genuine Position Report” of 4 April 2017

• Three cabcharge deposits from December 2016 and January 2017

• Work documents that referenced the applicant, from February 2016, September 2015, January and February 2014

• VicRoads Certificate of Roadworthiness: four vehicles only in November and December 2016, September and October 2015

• Business financial statements for 2014, 2015, 2016; and a company tax return 2016; GST statements July to September 2016

• A list of the number of taxis operated by the business from August 2013 to 14 February 2017

23.  Other information provided by the applicant included:

• A statement dated 6 April 2017 by Usman Naseer discussed the site visit and had key points: the applicant had no other tasks other than as a Transport Company Manager, and he had not done any other work for the owner; in the business he upskilled himself with marketing and advertising tools.

• A business plan and genuine position report

• Fleet management agreement

• Letter from the business accountant

24.  After considering the material before the Tribunal that includes the applicant’s submissions and evidence at hearing and his explanations for what happened during the site visit, I find that at the time of the applicant’s 457 visa grant in October 2013 the tasks of his Transport Company Manager position involved managing 30 taxis. I accept his evidence that this had involved managing 60 permanent drivers and about 10 casuals. However, by February 2017 the business nominally had just two taxis. I find that by February 2017 he did not perform the usual tasks of a Transport Company Manager [ANZSCO 149413] because:

·     As the applicant said during the site visit, the two taxis that remained on the business books were operated by the respective taxi drivers who rented the taxis. I reject both his later explanation that he assigned the drivers’ hours and arranged extra drivers as per the requirement of the current drivers, and the director’s claim at the site visit that the applicant’s tasks were to look after all of the rostering- because this would not have been needed in light of the arrangement where the drivers rented the taxis and made their own times, and indeed, at the site visit he was not able to show a roster of drivers. I find that by February 2017 he was not receiving orders and bookings, and planning and implementing transportation schedules.

·     He did not purchase and maintain transport vehicles, equipment and fuel. He did not regularly seek to employ taxi drivers because as he said at hearing, the business did not need more drivers, and indeed, at the site visit he was not able to show recent advertising other than an ad in Gumtree five months before.

·     He mentioned vehicles other than the two taxis, but these were privately owned and not within the business or his tasks in the occupation.

·     He had scant need to liaise with the two taxis and drivers because they rented the taxis. Indeed, at the site visit he could not show: a record of payments made to drivers, or the ‘cab charge amounts to drivers on behalf of his boss’ that he claimed were paid out of his personal bank account. At hearing he claimed he did in fact show the officers cab charges slips and he spoke of the slips being located in a safe in the owner’s office. However, in light of the officers’ observations that I accept, I do not accept that he did show the officers or have access to cab charges slips. In the review he produced cabcharge deposit slips, but as I pointed out at hearing these were not compelling evidence of a task as there were just three and they dated in December 2016 and January 2017.

·     He did not have tasks ensuring compliance with occupational health and safety regulations, and he had scant tasks concerning safety checks on taxis, because there were just two taxis and drivers who rented the taxis. Indeed, at the site visit he could not show evidence or a record of safety checks on vehicles, other than a safety record book dated two years before. His explanation that the records were kept in the (two) respective taxis so that the drivers could record issues, does not support his claim to have had regular tasks concerning safety checks on those taxis. Nor does his explanation explain why he had been unable to show the officers a record of safety checks on past taxis in recent years. In the review he produced VicRoads Certificate of Roadworthiness slips, but as I pointed out at hearing these were not compelling evidence of a task at the time as they just concerned four vehicles and only in November and December 2016, and then much earlier in September and October 2015.

·     He did not liaise with clients/drivers to determine requirements and provide customers/drivers with advice and information regarding taxis or hire rates and obligations and handle complaints, because there were just two taxis and the drivers operated and rented the taxis, and the applicant had scant involvement with taxi customers.

·     I do not accept his and the director’s claim that he was looking after the accident claims, because the number of accidents and resulting claims would have been scant in light of the few taxis operating. Indeed, at the site visit he could only show one accident file for 28 January 2017 and then others from 2014. In submissions and at hearing he claimed he had been working on a task to review files for the period 2012 to 2015 and to prepare reports on unclaimed accidents, and that is why files from 2012-2015 were on his desk. He also claimed the officers did not ask him about files for the period 2016 to 2017, even though those files had also been on his desk. However, the site visit record shows the applicant had shown the accident files to the officers and they only observed files for 28 January 2017 and 2014, and they did not sight later files. As well, the officers observed that he was unable to show how the files they did sight, took up his time or what he did with them. I therefore reject his explanations about working on files two to five years old, and how this took up his time. In the review he provided accident claim forms, but as I pointed out at hearing, this showed few accident claims as there were five only from January 2016 to January 2017.

·     In light of there being just two taxis rented out with correspondingly scant tasks concerning those taxis and drivers, I do not accept his tasks at the time included preparing reports on: pay; fleet performance; earnings; mechanical; accident; monitoring and billing; compliance with Victorian regulations. Nor did he evidence any reports current at that time.

·     I do not accept that at the time of the site visit the applicant had significant and ongoing involvement in the Taximan app and nor did he did not claim that at the time.  

·     As discussed, other documents provided by the applicant were not compelling evidence that supported his claim to have been fully employed in his occupation in 2017: work documents that referenced the applicant, from February 2016, September 2015, January and February 2014; business financial statements for 2014, 2015, 2016; and a company tax return 2016; GST statements July to September 2016; the business “Genuine Position Report” of 4 April 2017.

25.  In sum, by the time of the site visit the applicant was not organising and controlling the operations of an enterprise that was operating a fleet of vehicles to transport passengers and/or goods. This was because the work of the business had collapsed following the entry of Uber into Australia and Melbourne, and just two taxis remained and they were largely managed by their drivers. Indeed, as I pointed out at hearing, if he had been working full-time as a Transport Company Manager managing 30 taxis, 60 permanent drivers and about 10 casuals- then he would not have been working full-time as a Transport Company Manager managing just two taxis. While he claims he continued to be employed and received his usual wage until his visa was cancelled, in light of the foregoing discussion I do not accept that he had been working full-time Monday to Friday in the position as he claimed, and I do not accept that he had been performing the range of tasks of a Transport Company Manager [ANZSCO 149413].

26.  As discussed at hearing, the lack of work and tasks was a long-standing issue for him and the business, and this is supported by the evidence he provided that showed by February 2016 the business had just five taxis and by October 2016 just three. Similarly as I pointed out at hearing, if he had been working full-time as a Transport Company Manager managing 30 taxis, 60 permanent drivers and about 10 casuals- then he would not have been working full-time as a Transport Company Manager managing just five taxis that then dwindled to three taxis. I acknowledge the applicant’s explanations that in early 2017 the business: was waiting to see if Uber was found to be illegal; had sought to develop the Taximan app to assist business growth; the business had new partnership; the business anticipated intense growth. Nonetheless, by February 2017 the business had shrunk and was not expanding and this had been the situation for a very long time, and indeed the business ceased actively trading in the beginning of 2017-2018 financial year.

27. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) on the basis that the applicant has ceased to have a genuine intention to perform that occupation (regulation 2.43(1)(kb)(ii)) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

28.  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’ including:

• the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

• the extent of compliance with visa conditions

• degree of hardship that may be caused (financial, psychological, emotional or other hardship)

• circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

• past and present behaviour of the visa holder towards the department

• whether there would be consequential cancellations under s.140

• whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

• whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

• if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

• any other relevant matters

The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

29.  His entry to Australia and stay as a student The applicant first arrived in Australia on 17 May 2008 on a student visa, and his last student visa ceased on 15 October 2013. He completed a number of courses and has been awarded certificates and diplomas. To that time, the purpose of his travel to and stay in Australia had been to study as a student with a requirement to depart Australia if he ceased his approved study. I find his travel and stay in Australia as a student is now distant in time and does not give him a compelling need to remain in Australia.

30.  His stay in Australia on a 457 visa The applicant applied for the 457 visa, and the nominator Kool Future Pty Ltd made a business nomination, on the basis that the applicant would work full-time in a nominated occupation of Transport Company Manager [ANZSCO 149413] for the nominator. Based upon the documentation provided by the applicant and nominator to support the business nomination and visa application the Department assessed that the position was genuine and that the applicant met the relevant criteria, and so approved the nomination and visa application. Then on 9 November 2015 the applicant lodged an application for a permanent resident visa Subclass 186, and ostensibly as part of the assessment for that visa application a site visit was conducted on 14 February 2017. The site visit led the Department to consider cancelling the applicant’s visa and his visa was cancelled on 19 May 2017 on the basis that the applicant had ceased to have a genuine intention to perform that occupation. He sought a review of the visa cancellation and the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists.

31.  While he claims he continued to be employed and received his usual wage until his visa was cancelled, in light of the foregoing discussion I do not accept that he had been working full-time Monday to Friday in the position as he claimed, and I do not accept that he had been performing the range of tasks of a Transport Company Manager [ANZSCO 149413]. In light of the foregoing discussion I do not accept he had been preparing for an expansion of the business. As discussed at hearing, the lack of work and tasks was a long-standing issue for him and the business, and this is supported by the evidence he provided that showed by February 2016 the business had just five taxis and by October 2016 just three. Accordingly, by 2017 the applicant had ceased to have a genuine intention to perform that occupation.

32.  The applicant’s stay in Australia on a temporary work visa was on the basis that he would work in a genuine position and have a genuine intention to perform that occupation, and either seek to change his nominated occupation/sponsor or depart before the 457 visa ceased if he did not get another 457 visa or obtain a visa of a different class. Accordingly, his stay in Australia while holding a 457 visa, but in fact not working full-time and not performing the range of tasks of a Transport Company Manager for a significant ongoing period, weighs in favour of cancellation.

33.  His stay in Australia from May 2017 The applicant withdrew his 186 visa application on 22 May 2017 and as discussed at hearing, Kool Future Pty Ltd withdrew their review of the related nomination refusal. He has no outstanding applications for permanent or temporary visas.

34.  Following the visa cancellation he moved to W.A. where he currently resides and at hearing he stated he was unable to get work as a Transport Company Manager because the taxi industry had collapsed everywhere, but he had worked as a part-time taxi driver and a part-time Uber driver. I find his work since May 2017 does not give him a compelling need to remain in Australia.

35.  He does not seek to be re-employed by Kool Future Pty Ltd. Recently, he has indicated he would seek to be nominated as a Transport Company Manager by a prospective employer back in in Melbourne. On 28 April 2019 a submission suggested Mamoon Pty Ltd trading as Ezi Ryde was in the process of preparing to lodge a nomination application relevant to a 482 visa. But a submission dated 18 June 2019 stated he had been offered a position with Capital City Taxis. At the hearing I pointed out that ostensibly he was shopping around at this late stage for an employment offer, and in recent weeks he had submitted his prospective employment should be considered, but his claims concerned employment with two different prospective employers. He responded that Capital City Taxis was a bigger business with a bigger fleet and so he would proceed with that job offer. Nonetheless, based on the material before the Tribunal the applicant has not yet been formally offered a position of Transport Company Manager with Capital City Taxis. At hearing the applicant stated the boss wanted to see the applicant (who lives interstate) and discuss the employment with him, before completing and signing a contract. However, I did not agree to adjourn the review for several months while he sought to secure a formal job offer from Capital City Taxis in Melbourne (or from another prospective employer) as he has had a significant time since the visa cancellation and even since the Tribunal’s letter of 25 March 2019, to seek and get work as a manager.

36.  I acknowledge that the visa cancellation if affirmed by the Tribunal would additionally adversely affect any subsequent application for a 482 visa. Nonetheless, over two years have passed since the visa cancellation and despite recently searching for an employer, the applicant has not yet provided evidence of having gained employment in a skilled occupation including that of Transport Company Manager. In these circumstances I have decided not to adjourn the review while the applicant seeks a position, and I consider the possibility that he will receive a formal job offer in the future does not weigh against cancellation.

Circumstances in which ground of cancellation arose; The extent of compliance with visa conditions; Past and present behaviour of the visa holder towards the department

37.  The ground of cancellation arose when the business activities dwindled to the extent that in 2016 and 2017 the applicant had not been working full-time Monday to Friday in the position as he claimed, and he had not been performing the range of tasks of a Transport Company Manager [ANZSCO 149413]. While these circumstances were outside of his control, in 2016-2017 he nevertheless chose to remain in the occupation for a significant period (and seek to get a 186 visa) while not performing the range of tasks of the occupation, rather than seek another occupation/nomination with another employer.

38.  The delegate noted the applicant had been cooperative in providing information when requested. I note the applicant’s submission dated 7 May 2017 provided to the Department in response to the NOICC letter ostensibly included misleading information. The ‘Genuine Position report’ dated 4 April 2017 submitted the applicant had been undertaking the tasks and duties of the position full-time whereas my foregoing discussion and findings show he was not. I consider his past and present behaviour does not weigh against cancellation.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship); Whether there would be consequential cancellations under s.140; Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation; If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

39.  I accept that the visa cancellation will lead to the consequential visa cancellations of his wife and child. I note the visa cancellation does not concern a permanent visa.

40.  In submissions the applicant has raised a number of factors that he argues weigh against cancellation. He has lived in Australia since 2008 and has studied and worked here for a long period and he states he has recognised the Australian lifestyle and values as his own. He has been law abiding and paid taxes. He has gained qualifications here. He is married and his wife works in aged care and would continue working in that field if/when they moved back to Melbourne. He has parents and two sisters in W.A. and no close family in India, while his wife has a sister in NSW and two sisters in India. They have a child born in Australia and now aged 8 years. 

41.  At the hearing he submitted he had been in Australia for over 11 years and with family including a young son. He has in-laws in India but he is not close to them and they do not talk much. If he goes to India he will have to start from zero and would not know if he can feed his family. All of his family are in Australia. He did not do anything wrong and Australia is now their home. The applicant’s wife stated that they had not been responsible for the circumstances that happened. She contributes to the economy and it would be unfair if they have to return to India, and their son does not want to return to India.

42.  Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).  “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind. I find that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents any claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act, or from being granted one because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. Nonetheless, the applicant has not claimed that he and his family are at risk of harm in India, beyond saying that he would face financial difficulties on return.

43.  At hearing the parties spoke of their child and they argued the visa cancellation and move to India would have an adverse effect on him with a big change in lifestyle, language and culture. I have considered the Convention on the Rights of the Child (CROC) and whether cancellation would not be in the best interests of the child. I have treated the child’s interests as a primary consideration. The child was born in Australia but as the delegate’s decision[1] shows, was sent by the parents to India to live for one year from December 2011 to December 2012 and for almost two years between October 2013 and September 2015. I acknowledge the child stayed with grandparents who are now in Australia and he was very young and did not attend school in India. Nonetheless, his stay there for lengthy periods shows the parents did not have a fear that the young child faced harm or dislocation in India at that time. While the applicant would prefer to raise his child in Australia because of schooling, greater opportunities and lifestyle, the child is an Indian national and holds an Indian passport and will have no difficulties travelling to and living in India. Ostensibly, the child would have the opportunity to meet other of his relatives in India. I accept the child would face some degree of psychological hardship if the visa is cancelled, but not at a level that suggests he cannot travel to India to live. It is in the best interests of the child that he not be separated from the parents, and if the applicant’s visa is cancelled, the child will not be separated from the applicant (his father) or mother (whose visa would also be consequentially cancelled).

[1] Provided by the applicant to the Tribunal

44.  The applicant submits he and the family would face difficulties (financial, psychological, emotional or other hardship) in India. However, the applicant being a mature man would return to India with Australian qualifications and work experience albeit his most recent work experience is merely as a taxi and Uber driver. The wife would return with work experience in aged care. They are Indian nationals and they will be able to seek and get work in India.  As such there is no evidence before the Tribunal that the applicant will encounter insurmountable difficulties (financial, psychological, emotional or other hardship) re-establishing himself and his family in India where the wife’s extended family members live.

Whether there are mandatory legal consequences

45.  The applicant is currently on a Bridging visa because of this review process, and in the absence of a successful outcome, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

46. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications could be made by the applicant whilst onshore, and I have taken that potential limitation into account. He will also be subject to Public Interest Criterion 4013 and affected by a risk factor as a result of a cancellation which means he may not be granted a visa for three years from the date of a cancellation (unless his circumstances are sufficiently compelling to waive it). However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, I am not satisfied there are legal consequences of the cancellation which mean that the visa should not be cancelled.

Any other relevant matters

47.  I have considered and weighed up all of the relevant circumstances in this matter including the matters raised by the applicant and his representative in submissions and at hearing. I place substantial weight on my finding that the applicant’s stay in Australia on a temporary work visa was on the basis that he would work in a genuine position and have a genuine intention to perform that occupation, and either seek to change his nominated occupation/sponsor or depart before the 457 visa ceased if he did not get another 457 visa or obtain a visa of a different class. Accordingly, his stay in Australia while holding a 457 visa, but in fact not working full-time and not performing the range of tasks of a Transport Company Manager for a significant ongoing period, weighs in favour of cancellation.

48.  I acknowledge the business downturn over several years was a circumstance outside of the applicant’s control. Nonetheless, over a period from 2016 to 2017 he had a significant opportunity to change occupations with another approved nomination but he did not do so.

49.  I place little weight on his plans to work for a new sponsor as a formal job offer and contract has not been produced to the Tribunal despite ample opportunity over more than three months since March 2019 when the Tribunal sent a letter inviting him to comment on information and to provide information. As well, any prospective occupation/position has not been assessed by the Department for the purposes of a 482 visa application or any other visa application.

50.  I place some weight on the great difficulties the visa cancellation will have on his further nomination and employment opportunities. I place some weight on the fact that there will likely be some hardship on the applicant and his family if the visa is cancelled, including financial, emotional and psychological hardship- albeit I find it will not be insurmountable hardship. I have taken the best interests of the child into account as a primary consideration. It is in the best interests of the applicant’s child that he not be separated from the parents, but if the applicant’s visa is cancelled, the child will not be separated from the applicant and mother. If the visa is cancelled, all of the family will ultimately be required to depart Australia.

51.  However, balanced against those matters is that the purpose of the applicant’s continued stay in Australia was to fill a particular approved position for a particular approved sponsor. Further, despite the applicant’s, his wife and child’s extended residence in Australia, I am not satisfied they would not be able to re-establish themselves in their home country of India, where some of their extended families live, albeit this is not an option of their choosing.

Conclusion

52.  The Tribunal has considered this matter in light of the applicant’s own particular circumstances as in the Tribunal’s view it is required to do so, so as not to fetter the discretion to be exercised. The Tribunal has considered and weighed up all of the relevant circumstances in this case.

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

DECISION

54.  The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

C. Packer
Member