Singh (Migration)

[2021] AATA 4580

Singh (Migration) [2021] AATA 4580 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Pal Singh

CASE NUMBER:  2100400

HOME AFFAIRS REFERENCE(S):          BCC2020/1704917

MEMBER:Bridget Cullen

DATE:3 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 3 November 2021 at 12.30pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – applicant did not commence employment – genuine effort to commence that employment – registered business never actively operating – irregular salary payments – extensive financial transactions away from sponsor’s region – no Council food licence – credibility issues - contribution to the Australian community – decision under review affirmed 

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 Home Affairs on 11 January 2021 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 on the basis that the applicant did not commence employment at his nominated position of restaurant manager of Tasty Buds for MJ Food Venture Pty Ltd and did not satisfy the delegate that he made a genuine effort to commence that employment within that period. 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 6 September 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, Mr Piotre Ferenc, of Pacific Center Planet of Adventures Pty Ltd (MARN MARN 0743766).

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.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?

6. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.

7. The Tribunal has before it the following information in considering its decision:

   ·BCC2020/1704917, which was the material before the delegate;

   ·A copy of the delegate’s decision, provided to the Tribunal by the applicant;

   ·Undated letter of support from Mick De Brenni, State MP for Springwood;

   ·Written submissions of the representative, signed 30 August 2021;

   ·Invoice for Alinta Energy for April – July 2021, provided as ‘evidence of living in regional Australia’;

   ·Photo of the applicant from Facebook dated 28 November 2016; and

   ·Numerous attachments lodged on 13 January 2021, the day the application was lodged. All of these documents were previously provided to Department, and are set out in the chart below:

Evidence	Date Sworn	Purpose
Statement from Nash Dosanjh of Khalsa Assist	12 December 2020	Links to Australia
Statement from Surinder Singh of the Brisbane Sikh Temple (Gurdwara) Inc.	3 December 2020	Links to Australia
Statement from Jagdeep Singh of the Indian Cultural & Sports Club Inc	Undated	Links to Australia
Statement from Parwinderpal Singh of the Majha Youth Club	2 December 2020	Links to Australia
Statement from Harmandeep Gill from the Australian Punjabi Writers Organisation Brisbane (Uploaded twice)	12 December 2020	Links to Australia
Statement from Bernard Malik of American College	17 December 2020	Links to Australia
Statement from Parnam Singh Heir, of Red Rock Realty	11 December 2020	Links to Australia
Statement from Wes Thomas of Australian Red Cross Lifeblood	Undated	Links to Australia
Statutory Declaration of Balraj Singh Sandhu	16 December 2020	Character Reference
Statutory Declaration of Jasmeet Kaur Sandhu	16 December 2020	Character Reference
Statutory Declaration of Harjeevan Singh Nijjar	11 December 2020	Character Reference
Statutory Declaration of Ranjit Singh	14 December 2020	Character Reference
Photograph Set 1	N/A	Links to Australia
Photograph Set 2	N/A	Links to Australia
Delivery Docket	22 December 2016	Evidence of Employment
Bank Statements for PRA	March – November 2016	Evidence of Employment
Notice of Assessment 2016	Issued 22 December 2016	Evidence of Employment
PAYG Summary FY Ended 30 June 2017	Signed 15 August 2017	Evidence of Employment
Lions Springwood Club ID	N/A	Links to Australia
Incomplete Associations Incorporation Form	N/A	Links to Australia – Purports that PRA is Chairperson of Majha Youth Club BNE QLD (MYC) Inc
Additional Contact Form for Childcare Centre	Undated	Links to Australia
Passport of the Applicant’s Niece and Nephew	Undated	Links to Australia
“Emails from Seek”	Various	Evidence of Genuine Intention to live and work in Regional Qld
Submissions from Representative	21 December 2020	Representative Submissions
Statutory Declaration of Jatinder Pal Singh	22 December 2020	Applicant Statement

Section 375A Certificate

1. The Department's file includes a Certificate of Non-Disclosure issued under s.375A of the Act in respect of several TRIM Folios: CLD2020/22201541; CLD2020/28079767; CLD2020/28082788; CLD2020/28083137; CLD2020/28092567; CLD2020/35698658; CLD2020/36384516; CLD2021/822055; and CLD2021/822072 . The Certificate states that the disclosure of the information in those folios would be contrary to public interest because release of the information may:

   ·prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance;

   ·disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods, and

   ·disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

2. The Tribunal considers that the Certificate, on its face, is valid as it appears to provide a valid public interest reason for non-disclosure. In any case, the Tribunal is satisfied that no practical injustice arises in the circumstances of this case because the substance of the relevant information was either known by the applicant or was put to him using the procedures in s.359AA.

3. The delegate’s decision record reflects the concerns, to which the Certificate information relates, as follows:

   Integrity checks were undertaken by Australian Border Force (ABF) through a site visit to MJ Food Venture Pty Ltd on 28 November 2016. The findings indicate that although MJ Food Venture Pty Ltd was registered as a business with the Australian Business Register (ABR) on 5 January 2015, Tasty Buds Restaurant, whose business name was registered on 25 September 2015, has never been actively operating.

   A further site visit undertaken by ABF officers on 3 July 2020 further confirms that Tasty Buds restaurant was formerly located at shop 14, 14-22 Currie Street Nambour QLD and was never actively operating or trading.

4. There is also public source information contained in the Departmental file, from the Sunshine Coast Daily, which asserts that MJ Food Venture Pty Ltd Tasty Buds “was never seen to open” and refers to Tasty Buds as being a “ghost restaurant” which was being investigated “after allegations of visa fraud”. The article further asserts that Tasty Buds has never held a food licence, quoting a spokeswoman from the Sunshine Coast Council. The article alleges that the restaurant has never opened for trading; putting cutlery and glasses on tables to create the illusion of operating. The article makes various allegations about the director of MJ Food Venture Pty Ltd, Mubin Ul Haider, and quotes Mr Haider as claiming that Tasty Buds could not open because of problems with its grease trap.

5. The Tribunal points out that the media articles, which the applicant is aware of, broadly reflect the same topic matter that is contained in the information that is the subject of the Departmental s.375A Certificate. This information, together with the Tribunal’s providing the substance of the Certificate information to the applicant (that Tasty Buds was a sham business, that did not operate) provides the applicant with  sound basis from which to appreciate the nature of the information before the Tribunal.

6. The applicant gave evidence to the Tribunal that he did commence work at Tasty Buds. He says that he relocated to the Sunshine Coast but would travel back to stay with family a few days per week after he completed shifts at the restaurant. Tasty Buds was to be located in Nambour, and the applicant’s family are located in and around the Underwood area, which is a driving distance of approximately 120 kilometres each way.

7. The applicant signed an employment contract for the position of Restaurant Manager with Tasty Buds on 25 September 2015. The applicant was required to commence employment for the purposes of s.137Q(1) within six months from the date his visa was granted on 18 February 2016.

8. The applicant’s banking records from 2016, as provided to the Tribunal, reveal several deposits from “MJ Food” for $859.00 into the applicant’s ANZ account. There are no predictable intervals for the arrival of these deposits in the applicant’s account. Rather, the pattern is as follows:

Date of Week of Deposit of $859.00	Day of Week
30 April 2016	Saturday
6 April 2016	Wednesday
11 April 2016	Monday
19 April 2016	Tuesday
5 May 2016	Thursday
5 May 2016 (second deposit)	Thursday
9 May 2016	Monday
17 May 2016	Tuesday
23 May 2016	Monday
1 June 2016	Wednesday
6 June 2016	Monday
13 June 2016	Monday
23 June 2016	Thursday
27 June 2016	Monday
11 July 2016	Monday
18 July 2016	Monday
25 July 2016	Monday
8 August 2016	Monday
9 August 2016	Tuesday
29 August 2016	Monday
29 August 2016 (second deposit)	Monday
2 September 2016	Friday
17 November 2016	Thursday

1. Even in a small business, the Tribunal would expect salary payments to be more routine, and for there to be available corresponding payslips, and work schedules that align with the payments.

2. The applicant’s banking records also reveal the location of several other transactions during the period of his supposed employment with Tasty Buds. The geographic location of the transactions where a location is identifiable from the ANZ bank records provided by the applicant, and the dates of same, are reflected in the chart following:

Date of Transaction	Notation on Bank Record	Amount
26 April 2016	Visa Debit Purchase Card 6086 BWC Brisbane 133222 East Sydney	2.22
26 April 2016	Eftpos Chemist Warehouse Fortitude Valley	61.67
9 May 2016	Eftpos Bellas Fruit Market 003 Eight Mile Pla	48.42
9 May 2016	ANZ ATM Queen and Creek Branch #1 Brisbane QL	1000.00
1 June 2016	Eftpos A Rocklea Int Motel Rocklea QLDAU	135.00
2 June 2016	Visa Debit Purchase Card 6086 Healthy Choice Café Brisbane	80.00
6 June 2016	Eftpos Coles Express 1770 Virginia Au	79.39
17 June 2016	Eftpos Post Runcorn LPO QLDAU	750.00
20 June 2016	ANZ ATM Newstead Branch Newstead QL	1000.00
21 June 2016	Eftpos Seaworld Main Beach	14.40
21 June 2016	Eftpos Seaworld Main Beach	29.95
21 June 2016	Eftpos Punjabi Rasol Indian Brisbane QLD	81.00
27 June 2016	Eftpos Strandbags 033 Brisbane Airport	6.00
27 June 2016	Eftpos Strandbags 033 Brisbane Airport	80.90
27 June 2016	ANZ ATM Queen and Creek Branch #1 Brisbane QL	1000.00
29 June 2016	Eftpos Woolworths 2075 EightMLPlainsAU	20.98
4 July 2016	Eftpos Strandbags 458 Biggera Wate QLD	323.80
12 July 2016	Eftpos Coles Express 1853 Belmont Au	86.10
13 July 2016	Eftpos Low Price Home Pharm Kuraby QLDAU	54.85
14 July 2016	Eftpos Low Price Home Pharm Kuraby QLDAU	17.85
14 July 2016	Eftpos Freedom Fuels Austra Eight Mile P QLD01	21.60
19 July 2016	Eftpos Coles Express 1896 Brisbane Air AU	26.90
19 July 2016	Eftpos Tarocash Pty Ltd 302 Upper Mount QLD	79.99
28 July 2016	Eftpos Bellas Fruit Market 0001 Eight Mile Pla	23.55
28 July 2016	Eftpos Post Runcorn LPO QLDAU	243.00
2 August 2016	Eftpos Post Runcorn LPO QLDAU	56.00
5 August 2016	Eftpos Nutrition Warehouse Underwood Au	169.90
8 August 2016	Eftpos Freedom Fuels Austra Eight Mile P QLD01	55.61
8 August 2016	ANZ ATM Newstead Branch Newstead QL	450.00
10 August 2016	Eftpos Bellas Fruit Market 003 Eight Mile Pla	12.89
11 August 2016	Eftpos Kmart 1017 Sunnybank Au	61.00
11 August 2016	Eftpos Kmart 1232 Upp Mt Grvt Au	61.50
11 August 2016	Eftpos Trade Secret McGreg 00001 Macgregor	69.80
12 August 2016	Eftpos Big W 0271 Up Mt GravattAu	22.50
12 August 2016	Eftpos Global Convenience Underwood Qld	23.40
12 August 2016	Eftpos The Reject Shop 4436 Upper Mount GQL	55.50
12 August 2016	Eftpos Strandbags 033 Brisbane Airport	66.40
12 August 2016	Eftpos Connor Clothing Pty Upper Mount Qld	100.00
15 August 2016	Eftpos Connor Clothing Pty Brisbane Air Qld	29.99
15 August 2016	Eftpos Puma Brisbane Airp 0001 Brisbane	40.00
16 August 2016	Eftpos Grewal & Grewl P/L Calamvale QLD AU	122.90
17 August 2016	Eftpos CWH Browns Plains Au	132.89
18 August 2016	Eftpos Global Convenience Underwood QLD	23.49
22 August 2016	Visa Debit Purchase Card 6086 Big W 0252 Underwood	25.95
22 August 2016	ANZ ATM Queen and Creek Branch #2 Brisbane QL	1000.00
23 August 2016	Eftpos Origin Kebabs Carindale QLD AU	29.10
23 August 2016	Eftpos Apple Store Carindale Au	449.00
24 August 2016	Eftpos Coles Express 1876 Eight Mile Plau	37.20
25 August 2016	Eftpos Bellas Fruit Market 0004 Eight Mile Pla	7.90
25 August 2016	Eftpos 8 Mile PL Disc Drug 0001 Eight Mile Pl	37.97
25 August 2016	Eftpos BWS 2958 EightMlPlainsAu	42.00
6 September 2016	ANZ ATM Queen and Creek Branch #1 Brisbane QL	100.00
10 November 2016	Eftpos BWC Brisbane	2.22
21 November 2016	Visa Debit Purchase Card 6086 Mpay.com.au Smartcab Hamilton QL	1.11
21 November 2016	Eftpos Mpy.com.au Smartcab Hamilton QL	2.22

1. Summarising the information set out in the chart above, the applicant engaged in banking transactions in the following areas during the period from April 2016 – November 2016:

   ·Belmont – outer suburb of Brisbane

   ·Biggera Waters – coastal suburb in Gold Coast

   ·Brisbane

   ·Brisbane Airport

   ·Calamvale– southern suburb of Brisbane

   ·Carindale – suburb of Brisbane

   ·Eight Miles Plains – outer southern suburb of Brisbane

   ·Fortitude Valley – inner suburb of Brisbane

   ·Hamilton – riverside inner suburb of Brisbane

   ·Kuraby – outer southern suburb of Brisbane

   ·Macgregor – southern suburb of Brisbane

   ·Main Beach – coastal suburb in Gold Coast

   ·Newstead – inner northern suburb of Brisbane

   ·Rocklea – suburb of Brisbane

   ·Runcorn – outer southern suburb of Brisbane

   ·Sunnybank – suburb of Brisbane

   ·Underwood – suburb of Logan (south of Brisbane)

   ·Upper Mount Gravatt – suburb of Brisbane

   ·Virginia – suburb of Brisbane

2. During the period March 2016 – March 2018, the applicant claims that he was residing at a unit on Landsborough Parade in Golden Beach, on the Sunshine Coast. Yet, there are no purchases for any items anywhere near the Sunshine Coast reflected on the banking records before the Tribunal. Rather, the purchases are predominantly from locations in and around Brisbane, and particularly in the suburbs south of Brisbane, near where the applicant’s relatives reside, in Underwood.  The applicant’s banking records reflect an address located at Rolfe Circuit, in Underwood. The applicant has not provided a lease for his unit accommodation in Golden Beach but says that he paid $100 a week in cash to the leaseholder, Mr Harinder Singh.

3. The applicant claims that he commenced work shortly after he signed his contract – somewhere around March of 2016. He claims that he arrived to find the restaurant in disarray, with no oven, cookers, refrigeration system, and that management was “deplorable”. The applicant says he is no longer in contact with the cook, or any staff. It is difficult to understand what the applicant actually did in a restaurant that could not produce meals given the absence of cooking facilities.

4. The applicant has provided the Tribunal with a photograph taken of himself with family at the Big Pineapple, on 28 November 2016. The Big Pineapple is located at Nambour, near the site Tasty Buds occupied. The applicant says that he was present during a site visit by the Department on this same date. He claims that his relatives stopped at the restaurant before going to the Big Pineapple. While the Tribunal is prepared to accept that the applicant and his relatives visited the Big Pineapple on this date, it does not consider the photograph proof that he had in fact commenced work.

5. The Tribunal thinks it likely that the applicant was aware that the role was not genuine. The applicant says, in his statutory declaration, that when he went to the restaurant shortly after obtaining permanent residency on 18 February 2016, that:

   “…it was nothing like a restaurant. There was no equipment available in the kitchen. When I raised up questions regarding that they advised me there were some problems with the shop and I got sked to start job and do the setup. There was no oven, cookers in the restaurant, refrigeration system, freezer, microwave, grills, no deep fryers even there was no proper water supply at that time. There were no filling cabinets, prep tables, cooking equipment, pans, serving plates and no dish washing facilities were available and display fridge were also broken. Kitchen floor and furniture was damaged, we did all the overlaying in the kitchen after dissatisfaction and replaced the furniture as well.”

6. Despite the incredible level of disarray the applicant says existed on his arrival at Tasty Buds, he then claimed in the hearing that the restaurant began to serve meals in March of 2016 – just a few weeks later. It is difficult to believe that if the restaurant was in such a parlous state when the applicant arrived after 18 February, that it would be ready to serve meals in March. This is particularly difficult to believe in circumstances where the restaurant never possessed a Council food licence, and the s.375A Certificate material very reliably suggests that the restaurant never opened.

1. Yet, despite supposedly arriving to work as a restaurant manager in a venue with that was, on the applicant’s own evidence, was “nothing like a restaurant”, the applicant took no steps to raise those concerns with the Department. The applicant claims that “Management actions were deplorable as they were too slow to provide any technical assistance as quickly as possible”. Other than this undetailed, generic assertion, there is no evidence before the Tribunal that the applicant did, in fact, take any steps to raise his concerns with his employer, or anyone else.

2. During the same period, the applicant was also working as a taxi driver. He says that he did this in addition to his work at Tasty Buds. He says that he was driving one or two shifts per week for Black and White Cabs, in Brisbane, during this period.

3. The applicant has submitted an invoice for delivery of a gas bottle, allegedly to “Tasty Buds Restaurant” as proof that he was working for MJ Food Venture Pty Ltd. The receipt, dated 22 December 2016, does not reveal a street address, referring only to “Locationid: 167090”. The receipt is unsigned. Further, the invoice says there was no one to sign. The Tribunal is not able to place any weight on the unsigned receipt for delivery of a gas bottle to an unstated location as proof that the applicant was in fact working for Tasty Buds, or as proof that he was residing on the Sunshine Coast.

4. Viewing the evidence collectively, the Tribunal does not accept that the applicant ever commenced work for Tasty Buds in the nominated role of Restaurant Manager. The Tribunal considers the information evidence before the Tribunal in the Certificate to be more reliable than the applicant’s assertions, which are not supported by persuasive, objective evidence.

5. The Certificate material makes it plainly obvious that Tasty Buds never traded. This is consistent with the information suggesting that Tasty Buds never had a council food licence. It is also consistent with the view that the Tribunal has taken of the applicant’s own evidence – the payments made by MJ Food are inconsistent with the routine timing of payroll, and reveal that the applicant was active in the Brisbane geographic region.

6. The Tribunal finds that the applicant did not relocate to the Sunshine Coast in order to work for MJ Food Venture Pty Ltd at “Tasty Buds” in Nambour, based on the absence of any documentary evidence supporting a finding that he maintained a residence at Golden Beach, together with an absence of any bank records revealing any Sunshine Coast/Nambour based transactions. The Tribunal finds that the deposits from “MJ Food” for $859.00 to the applicant’s account are not genuine payments for work performed at Tasty Buds. The Tribunal thinks it highly plausible that the payments were part of a sham operation to create the appearance of a role, in which the applicant was complicit. The large, periodic withdrawals of cash from the applicant’s account are consistent with a view that the applicant provided cash to his employer, which the employer would then use to make the irregular transfers of money to the applicant’s account. The Certificate material supports this finding, suggesting that the applicant was actively complicit in pay for visa conduct.

7. Given the above information, the Tribunal is satisfied the applicant visa holder did not commence the employment referred to in the relevant employer nomination within the period prescribed by the regulations. Further, the Tribunal finds that the applicant did not make a genuine effort to commence employment for the reason that it considers there was never a genuine position as a restaurant manager at Tasty Buds, and as such there are grounds to cancel the applicant’s RSMS visa under section 137Q of the Migration Act 1958.

8. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the visa should be cancelled.

   Should the visa be cancelled?

9. There are no matters specified in the Act or Regulations that must be considered in relation to 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: Act - Visa cancellation instructions - Regional sponsored employment visas’.

10. The Tribunal considers that the purpose of the applicant's stay in Australia was to work for the regional nominating employer, who in this case is MJ Food Venture Pty Ltd, for a period of two years. The Tribunal considers that the applicant has not fulfilled the purpose of his stay as he did not commence work for the regional nominating employer.

11. The applicant is a single man with no children of his own. There are no children whose interests would be affected by cancellation, or consequential cancellation under s.137T. The Tribunal acknowledges that the applicant has a niece and nephew who he has a close family relationship with, and it has considered their interests below, in relation to the hardship cancellation will cause the applicant and his family. The applicant’s niece and nephew are not in a position where their visa status is at risk if the applicant’s visa is cancelled. As such, this is not a factor that the Tribunal has considered in relation to the exercise of discretion.

    The circumstances leading to the grounds for cancellation

12. The applicant claims to be a victim of shoddy business practices of the nominator, claiming that he dutifully went about trying to do his best, in circumstances where there was no equipment available in the kitchen, nor water. The Tribunal has found that the restaurant, Tasty Buds, did not in fact ever open for trading. The applicant’s assertions to the contrary lack credibility and are implausible. While the Tribunal has not revealed the detailed information that is subject to the s.375A Certificate to the applicant, it has revealed the nature of that information.

13. While the Tribunal is reluctant to make unnecessary findings of credit, in these circumstances, the Tribunal considers it necessary to do so. The Tribunal has formed the view that the applicant is being plainly untruthful. The Tribunal does not accept that the applicant relocated to Golden Beach to facilitate his working in Nambour. The Tribunal does not accept that the applicant commenced working at Tasty Buds. The Tribunal does not accept that Tasty Buds was a genuine operation and considers it likely that the applicant was complicit in facilitating the sham in order to secure a visa. In other words, the Tribunal does not consider the applicant to have been a blameless victim of his nominator’s poor conduct.

14. Rather, the Tribunal considers that the applicant has been untruthful with it, and the Department. The integrity of Australia’s migration system is at stake where visa applicants are untruthful, and the Tribunal considers that this conduct weighs strongly in favour of cancellation.

    The visa holder’s current and past behaviour in relation to the Department

15. Given the Tribunal’s findings that the applicant did not commence work as claimed, it has in consequence found that the applicant has, as explained above, been untruthful to both the Tribunal and the Department. The Tribunal acknowledges that the applicant has cooperated with both Departmental and Tribunal processes and has been courteous. Other than this matter, there is no information before the Tribunal suggesting that the applicant has engaged in any behaviour of concern to the Department.

16. The Tribunal considers the applicant’s conduct to be serious, in that the information he provided to the Department was material to his entitlement to the visa and was incorrect. The Department became aware of the concerns relating to the applicant’s employment through its own methods, and not through the applicant informing them of his alleged concerns about his employment. This is a factor that the Tribunal considers weighs strongly in favour of cancellation.

    The applicant’s links to the community and degree of hardship to the applicant and members of his family unit

17. The applicant has lived in Australia since 2008, and has strong ties to the community, and to his aunts, uncles, nieces and nephews who are resident in Australia. He has been industrious on the educational front, obtaining a Certificate III in Commercial Cookery; a Diploma of Hospitality; a Diploma of Management; a Diploma of Business; an Advanced Diploma of Business; and was completing a Certificate III in Individual Support (Ageing).

18. The information before the Tribunal reveals that the applicant has been involved in the Underwood community – including the setting up of a non-profit organisation, the Majha Youth Club, and organising blood drives for the Australian Red Cross. He has a number of people in the community, including his local State Member of Parliament, who have provided character references for him, and the Tribunal accepts that the applicant has been a positive contributor to his community.

19. The Tribunal further accepts that the applicant now has strong family and friendship ties to Australia. His mother died relatively recently back in India, where his father continues to reside. The applicant says that his return to India, having “failed” in Australia will cause his father psychological distress.

20. The applicant has a close family unit with his uncle here in Underwood. He assists with school drop offs and child minding of his cousins. The Tribunal accepts that the applicant’s support network is now predominantly in Australia, and that he has a limited network in India, having left when he was 20.

21. The applicant has provided evidence that he was living in regional Australia as at the time of hearing. The applicant is now 33 and will return to India with the benefit of his qualifications. While the Tribunal accepts that establishing himself in India will take time, the applicant is still a reasonably young man, and his father continues to reside in India. The Tribunal acknowledges that 13-years in Australia is a long time and does not downplay the distress that cancellation will have on the applicant, his family, and Australian friends. The Tribunal considers this a lamentable state of affairs, as the applicant was a positive contributor to the Australian community.

22. The Tribunal weighs the applicant’s links to the community and degree of hardship cancellation will cause as factors that strongly weigh against cancellation.

    Length of any period of employment with the sponsor, including any previous employment with the sponsor whilst the visa holder was on a temporary visa

23. As the Tribunal has found that the applicant did not commence work with the sponsor, it has weighed this factor neutrally – neither in favour or against cancellation.

    Any other relevant matters

24. The applicant is concerned that his return to India will be further challenging because of the economy in Punjab, inadequate public health, Covid-19, and improved human rights in Australia. The Tribunal has considered these matters and accepts that the applicant is genuinely distressed at the prospect of returning to India. The Tribunal has considered these factors in forming its view that the applicant will experience hardship in returning, having adjusted to the Australian way of life.

    Conclusion

25. Considering all of the factors, the Tribunal ultimately finds that the seriousness of the Tribunal’s finding that he did not commence employment with MJ Food Venture Pty Ltd outweighs the very real anguish that the Tribunal accepts cancellation will cause to the applicant.

26. The Tribunal has been careful to particularize the nature of the s.375A Certificate information, to enable the applicant to respond. The certificate information is of a reliable nature and contains sufficient particulars that the Tribunal has concluded paints a picture of the applicant being untruthful about the circumstances of his employment, which goes to the core of Australia’s migration program.

27. Considering the circumstances as a whole, the Tribunal concludes that the correct and preferable decision is that the visa should be cancelled.

    DECISION

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

    Bridget Cullen

    
    

    Member