Singh (Migration)

[2020] AATA 4740

Singh (Migration) [2020] AATA 4740 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanjot Singh

CASE NUMBER:  1726293

DIBP REFERENCE(S):  BCC2017/937768

MEMBER:Stavros Georgiadis

DATE:18 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.221 of Schedule 2 to the Regulations.

Statement made on 18 August 2020 at 6:23pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– breach of work limitation Condition 8105 – applicant has not worked for more than 40 hours a fortnight–evidence provided –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.221

CASES
Baidakova v MIMIA [1998] FCA 1436
Jayasekara v MIMIA (2006) 156 FCR 199
Kim v Witton (1995) 59 FCR 258
MIMA v Modi (2001) 116 FCR 496
Shrestha v MIMA [2001] FCA 1578

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 on 11 October 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 March 2017. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant’s sponsor employer is Aroma Cuisines Pty Ltd who was approved as a Standard Business Sponsor (SBS) from 10 August 2015 for 5 years. The sponsor presently has a renewed SBS application lodged on 13 August 2020.  The nomination for the position in respect of the applicant was approved by the Department on 10 April 2017.

4. The delegate refused to grant the visa on the basis that cl.457.221 was not met because the applicant did not substantially comply with conditions on his last substantive visa or any subsequent Bridging visas due to a breach of work limitation Condition 8105.

5. The applicant appeared before the Tribunal by teleconference on 17 August 2020 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant satisfied cl.457.2211 of the Regulations for grant of the visa which provides as follows:

   Reg 457.221

   If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

   Has the applicant complied substantially with the conditions of the last relevant visas?

9. The applicant was in Australia at the material times.  Therefore, cl.457.221 requires that he must have complied substantially with the conditions that applied to the last of any substantive visa held and to any subsequent bridging visas. Case authority informs that whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. The circumstances considered by Sackville J to be relevant in Kim v Witton included:

   ·the nature of the breach of condition;

   ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

   ·whether or not the applicant deliberately flouted the condition; and

   ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

10. However, there is no rigid test, and the Tribunal has proceeded on the basis that those considerations are not regarded as exhaustive, or elevated to the status of relevant considerations in every case: Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496. In addition, there are visa conditions to which the concept of substantial compliance has no logical application. In those cases, either the condition is satisfied or it is not: Jayasekara v MIMIA (2006) 156 FCR 199.

11. In the present case, the applicant’s last substantive visa held was a (Class TU) Student (Higher Education Sector) Subclass 573 visa, which was granted offshore on 28 Oct 2013 with the following conditions applied:

    ·     8105 – Work Limitation

    ·     8202 – Continues Studying

    ·     8501 – Health Insurance

    ·     8516 – Maintain Eligibility

    ·     8517 – Dependants Education

    ·     8532 – Welfare for Minors

    ·     8533 – Notify Address

12. The applicant subsequently held Bridging visas WA-20 (granted 9 March 2017) and WB-20 (granted 15 January 2019) that were each subject to Condition 8105 (work limitation).  The Condition 8105 sets out as follows:

    (1A) The holder must not engage in any work in Australia before the holder’s course of study
    commences.

    (1) Subject to subclause (2), the holder must not engage in work in Australia for more than
    40 hours a fortnight during any fortnight when the holder’s course of study or training is in
    session.

    (2) Subclause (1) does not apply:
    (a) to work that was specified as a requirement of the course when the course particulars
    were entered in the Commonwealth Register of Institutions and Courses for Overseas
    Students; and
    (b) in relation to a student visa granted in relation to a Masters degree by research
    or doctoral degree if the holder has commenced the Masters degree by research or doctoral
    degree.

    (3) In this clause:
    fortnight means the period of 14 days commencing on a Monday.

13. The applicant’s oral evidence is that for the purposes of sub-paragraph (1) of Condition 8105, he never worked more than 40 hours per fortnight except during the summer holiday break period over December 2014 / January 2015 and also December 2015 / January 2016 when this increased temporarily to approximately 50-55 hours per fortnight while the course was not in session.  This is allowable (as course not in session) under sub-paragraph (1) above in respect of work limitation Condition 8105.  The applicant’s course of study with Kaplan Institute ran from 6 November 2013 to 17 May 2019 at which time his degree award of Bachelor of Business (Accounting) was conferred.

14. The applicant has provided an employer reference from Oz Skyline Pty Ltd to substantiate the evidence of employment as Motel Manager from 14 November 2013 to 13 September 2015 whilst undertaking his course of study. His accepted evidence is that his paid employment for that work was from 30 December 2013. There is nothing to persuade the Tribunal that the applicant substantially breached the requirement to not engaged in any work in Australia before his course of study commenced noting that he did not arrive in Australia until 4 November 2013.

15. After leaving employment at Oz Skyline Pty Ltd, the applicant worked as Restaurant Manager with Aroma Cuisines Pty Ltd (trading as Billus Indian Eatery) from September 2015 to February 2018.  This business then changed hands to be operated by AKS Hospitality and Catering Services Pty Ltd at which time the applicant continued to work as Restaurant Manager from February 2018 to May 2020.

16. In response to the hearing invitation, the applicant provided further material that was not before the delegate. The material provided includes the following:

    ·Current CV

    ·Bank account statements held by the applicant in Australia since 2013

    ·PAYG Payment Summaries for all employment in Australia (for the financial years 2014 to 2019)

    ·Notices of Assessment from the Australian Taxation Office (ATO) for the financial years 2014, 2015, 2016 and 2017.

17. The delegate refused the visa on the basis of not satisfying Condition 8105 (work limitation) relating to work hours. The Tribunal gives weight to the applicant’s oral evidence which is consistent with the PAYG Payment Summaries provided and other material before the Tribunal in respect of the work hours performed and related wages paid for the various employers above during which the work limitation condition 8105 applied to the applicant’s visas.  The applicant submits that he has complied with all visa conditions on his last substantive visa and the subsequent Bridging visas.

18. The PAYG Payment Summaries provided record the following part-time earnings:

    Financial Year  Earnings ($)              Employer

    * 2014  13,873  OZ Skyline PL

    * 2015  30,194 (Motel Mgr.)    OZ Skyline PL

    * 2016  8,996 + 8578              Aroma Cuisines PL + Oz Skyline PL

    * 2017  21,700   Aroma Cuisines PL

    * 2018  7,374 + 12,400           AKS Hospitality + Aroma Cuisines PL

    * 2019  13,829  AKS Hospitality & Catering PL

19. The Tribunal accepts the applicant’s oral evidence of part time earnings equivalent to approximately half of ordinary full time earnings (or less) for the occupations performed by him.  This reflects work hours of not more than 40 hours per fortnight (half time) which is consistent with the above figures reflecting part time earnings of half or less the ordinary full time earnings applicable to the role of Restaurant Manager ($55,000 per year full time) and Motel Manager ($65,000 per year full time).  Further, the applicant’s Smart Access Account bank statements ending 5573 from Commonwealth Bank record regular payments of wages throughout the period of January 2014 to end December 2019 that broadly support salary payments not beyond those above, substantially overall.  

20. The Tribunal finds therefore, that the applicant has substantially complied with work limitation Condition 8105 as relevantly, he has not engaged in work in Australia for more than 40 hours a fortnight during any fortnight when his course of study or training was in session. There is no evidence before the Tribunal that points to the applicant not complying with the other visa Conditions: 8202 Continued Studying; 8501 holds Health Insurance; 8516 Maintained Eligibility; 8517 (N/A) Dependants Education; 8532 (N/A) Welfare for Minors; and 8533 - Notified Address which the applicant addressed in his oral evidence accepted by the Tribunal.

21. For these reasons, the Tribunal finds that the applicant has complied substantially with the applicable visa conditions. As such, the applicant satisfies cl.457.221 of the Regulations.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

23. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.221 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member