Singh (Migration)

[2020] AATA 1622

Singh (Migration) [2020] AATA 1622 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amrit Pal Singh
Mrs Priyanka Radhu

CASE NUMBER:  1832032

DIBP REFERENCE(S):  BCC2017/1534287

MEMBER:Bridget Cullen

DATE:30 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

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

Statement made on 30 April 2020 at 1:14pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – ceased employment with sponsor before visa granted, without notifying department – claim of unpaid leave to support pregnant wife – sponsor notified department that applicant had ceased work, then supported his claim of unpaid leave – return to work after visa cancelled – financial records – places of residence – wife’s health – child an Australian citizen because applicant a permanent resident at the time – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109(1), 140(1), 362A, 375A

CASE
MIAC v Khadgi (2010) 190 FCR 248
Patel (Migration) [2019] AATA 1427

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 to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had ceased employment with his sponsor on 23 January 2017, prior to the grant of the visa, and did not notify the Department, breaching s.104 of the Act. 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, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 4 April 2019, 12 June 2019 and 8 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Parwinder Singh, the applicant’s current employer. Mr Mandeep Singh, a friend of the applicants, attended the 4 April 2019 hearing as a support person.  

5. The applicants were represented in relation to the review by Mr Lorenzo Boccabella, Barrister-at-Law (Qld) and Specialist in Migration Law. Mr Boccabella attended all of the Tribunal hearings, and was afforded extensive opportunity by the Tribunal to make submissions on the applicant’s behalf, including suggesting lines of questioning that Mr Boccabella believed the Tribunal should exercise its inquisitorial powers in relation to.

6. 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

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Section 375A Certificate

10. At the commencement of the first hearing, the Tribunal explained to the applicant and his representative that the Department file relevant to his review contains a certificate and notification regarding disclosure of certain information to the Tribunal under s.375A of the Act. A copy of the s.375A certificate was handed to the applicant during the hearing, as well as being provided in conjunction with the applicant’s request for information pursuant to s.362A on 5 December 2018.

11. The Tribunal explained to the applicant that it had taken the view that this was a valid certificate because a public interest reason for the non-disclosure is clearly specified in the certificate with sufficient detail to identify the claimed harm to the nation or public service that its release could lead to. Further the certificate material contains information shared between internal sections of the Department and external agencies and the disclosure of this information would be contrary to the public interest.

12. The Tribunal told the applicant that although it was satisfied that the certificate was valid, it would put the general gist of the material to the applicant, as a matter of procedural fairness, to facilitate his ability to meaningfully respond.

13. The Tribunal explained that the information related to the following matters:

    ·That the applicant identified himself to the ATO as a taxi driver;

    ·That at points in time when the said he was working in Lismore (NSW) for his sponsor, Grewal and Sidhu Pty Ltd trading as Café Saffron Authentic Indian Cuisine, that he was in fact residing in Grafton (NSW), Richlands (QLD), or  Runcorn (QLD). 

    ·That the only periods in which the applicant’s employer, Grewal and Sidhu Pty Ltd, reported his earnings to the ATO was as follows:

    ·Period from 15/07/2013 to 30/06/2014 – total salary and wages of $36,711.00, tax of $6,446.00 withheld; and

    ·Period from 01/07/2016 to 30/06/2017 – total salary and wages of $26,552.00, tax of $5,262.00 withheld.

    Both the 2014 and 2017 amounts are significantly less than what the applicant was meant to be paid by his sponsor, who he says he worked for between 1 October 2013 to 30 March 2017.

    ·Additionally, there is information alleging that the applicant has been involved, with the Director of Grewal and Sidhu Pty Ltd, Mr Parwinder Singh, of payment for visa arrangements.

14. The Tribunal then adjourned briefly, to provide the applicant with time to consider his submissions on the validity of the certificate.  Mr Boccabella told the Tribunal that he did not consider that the Minister had a valid claim to “public interest immunity”. The Tribunal explained that it considered that the certificated information might reveal the methods of investigation that are utilised by the Department, which it considered a valid basis to support the s.357A certificate. 

15. In any event, the Tribunal told Mr Boccabella that it had particularised the information that the certificate covered. At the hearings in this matter, and despite Mr Boccabella’s objections on behalf of his client, the Tribunal particularised the information in considerable detail.  There can be no genuine argument that the applicant did not understand the concerns raised by the delegate in relation to his residential addresses and tax affairs. 

16. The Tribunal has placed no weight on the allegation that the applicant and Mr Singh have engaged in payment for visa conduct, as there are limited particulars supporting the allegation before the Tribunal.

17. The Tribunal is prepared to accept the applicant’s explanation that the s.375A material, in so far as it suggests that he identified himself to the ATO as a taxi driver is a reference to his earlier work while on a student visa. 

18. The material before the Tribunal suggests that the Department believes the applicant may have been residing in Brisbane while supposedly working in Lismore.  The Tribunal is prepared to accept that the applicant has used various mailing addresses with the ATO to suit convenience, and the Tribunal does not make any findings about his actual residential location on the basis of these addresses.

19. The following exchange took place between the Tribunal and Mr Boccabella in relation to the s.375A certificate:

    MEMBER:  No, I have given you all of the information that would – I’ve particularised all of what is in front of me.  There is, you know, no other indication about the information other than what I have just put to you.  I don’t have those details in front of me.

    MR BOCCABELLA:  My submission is that we should have an adjournment to get the tax returns, go through all of those things you just mentioned.  Mr Singh can obviously get the tax returns of his employer. 

20. In fact, the Tribunal did provide the applicant with a period of several months to provide any further material, as the hearing was held across 3 hearing dates.  Although Mr Boccabella indicated that the tax returns would be supplied, the applicant has only provided the Tribunal with limited taxation documents, as will be discussed later in this decision, and none that represent “as filed” documents with the Australian Taxation Office.

21. The Tribunal has considered all of the information filed by the applicant in the Tribunal, including the following:

Date Received	Material Contained
19 March 2019	Email from representative regarding the President’s Direction in relation to Conducting Migration and Refugee Division Reviews and a request for all certificates under s.375A/s.376 Migration Act.
28 March 2019	Postponement request from the representative as the witness is overseas.
3 April 2019	Submissions made by the representative relating to the s.362A request (namely, ascertaining if the s.375A certificate related to the director) and validity of the s.375A certificate; Two statutory declarations (from the primary review applicant and his wife, dated 3 April 2019).
4 April 2019	Submissions made by the representative in relation to s.109 Migration Act; Submissions from the representative in relation to the best interests of the applicant’s child; Statutory Declaration from Parwinder Singh; ASIC Current & Historical Company Extract (obtained on 4 April 2019); Citizenship certificate (secondary applicant); Bank statements of the applicant received at hearing.
16 April 2019	Extension of time request for post-hearing submissions from the representative.
3 May 2019	Email 1: Letter from accountant of applicant’s employer; Statutory Declaration from applicant, dated 2 May 2019; Notice of Assessments from applicant from end of 2015-2018 financial years; PAYG for 2013-2014 financial year, signed 15 April 2019.
3 May 2019	Email 2: PAYG for 2014-2017 financial years (all signed 15 April 2019); Payslips for applicant for extensive periods of time, and an employee pay report for the applicant.
9 May 2019	Further submissions from the representative in relation to s.109 of the Migration Act; link to an ABC news article about Lismore floods.
31 May 2019	Submissions from the representative in relation to s.375A, s.362A and s.359AA; Further 362A Request.
7 June 2019	Statement from applicant’s employer, Parwinder Singh.
12 June 2019	Further submissions from the representative; Statutory Declaration from Parwinder Singh, signed 11 June 2019, Statutory Declaration from the applicant, signed 11 June 2019; Statutory Declaration from the applicant’s wife, signed 11 June 2019; News Article from Northern Star dated 5 April 2018; Food Business Inspection Report from Lismore City Council, dated 7 June 2019; Receipts and invoices for Lizmore Mazda dated 7 May 2019.
5 August 2019	Rent Agreement for the applicants, made on 11 July 2019; Letter from Apex Training Institute dated 12 July 2019; Letter from NSW Transport – Roads & Maritime Services relating to address change for applicant; Employment agreement for the secondary applicant; Food Business Inspection Report previously provided; Food Safety Supervisor Certificated awarded to the applicant on 3 November 2015; Energy agreement for applicant with red energy; Receipt for rent and bond with applicant’s real estate agent; Statement of Attainment for secondary applicant in relation to a Certificate III in Individual Support (Ageing).
7 August 2019	Submission from representative about the late submissions; Statutory Declarations for primary applicant and his wife, signed 7 August 2019.
19 August 2019	Extension of time request for post-hearing submissions from the representative.
3 September 2019	Articles relating to restaurant; Further submissions in relation to applicant’s daughter with attachments relating to dual-citizenship and a previous decision of the AAT; Tax returns for the applicant for 2015 and 2016 financial years, and letter from Accounting Solutions & Strategies.
9 September 2019	Further legal submissions from the Representative
18 December 2019	Further submissions from the representative; Statutory Declarations from the applicant (12 December 2019), his wife (11 December 2019) and employer (11 December 2019); Various Payslips, Bank Statements and variation to the applicant’s wife’s employment.

Was there non-compliance as described in the s.107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. It is not disputed that the applicant was sponsored by Grewal & Sidhu Pty Ltd for a Subclass 457 visa, prior to applying for, and being granted the ENS (Subclass 186) visa that is the subject of this visa cancellation decision.

2. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.104 of the Act in the following respects:

   ·On 23 June 2016, the applicant lodged an application for an Employer Nomination Scheme Visa, via the Department’s online facility.  The application was lodged in association with a nomination lodged by Grewal & Sidhu Pty Ltd, trading as Café Saffron Authentic Indian Cuisine. 

   ·In support of the application, the applicant provided an employment agreement, for the nominated position of Cook, with Grewal & Sidhu Pty Ltd (signed by Director, Mr Parwinder Singh, on 23 January 2017).  The applicant signed the agreement on 24 January 2017.

   ·The application was approved by the Department on 3 February 2017.

   ·In April 2017, the Department was advised by Mr Parwinder Singh, Director of Grewal & Sidhu Pty Ltd that the applicant had ceased attending work with his sponsor on 23 January 2017, prior to the date of his ENS (subclass 186) visa grant.

3. The Department considered that the applicant had not complied with s.104 of the Act as he did not inform the Department of a change to his circumstances that resulted in an answer in his visa application being incorrect prior to the ENS visa being granted. Specifically, the Department considered that the applicant did not advise the Department he ceased to have the intention to be employed for two years with his nominating sponsor, Grewal & Sidhu, prior to the ENS visa being granted.

4. The applicant does not agree that there was non-compliance. He asserts that he was employed as a full-time cook with his sponsor, Grewal & Sidhu Pty Ltd (trading as Café Saffron), between 1 October 2013 until 30 March 2017.

5. The applicant says that on 23 January 2017 (which is the day before he signed the employment agreement provided to the Department), his sponsor allowed him to take a period of approximately one month’s leave.

6. The applicant says that the leave was so that he could support his wife, Priyanka Radhu, who was expecting their first child (daughter Amreen Kaur Lally was born in April 2017, and is an Australian citizen). The applicant says that he needed to attend medical appointments in Brisbane, with his wife. The applicant and Ms Radhu say that although they were living in Lismore, where Café Saffron was located, that Ms Radhu had concerns about having the baby in Lismore. 

7. The applicant says that in February of 2017, Mr Parwinder Singh agreed to extend is period of leave as Ms Radhu was suffering from morning sickness and iron deficiency, and was told by her doctor to be on “bed rest” and therefore did not want to travel back to Lismore.

8. At the end of March, the applicant says that Mr Parwinder Singh called him, and advised that Café Saffron had closed, due to the floods in Lismore.  Although the restaurant was re-opened following repairs, he says that his sponsor told him that he could not afford to continue his employment.  He says that he was terminated on 30 March 2017.

9. In April of 2017, the applicant obtained employment with the Brisbane City Council as a bus driver.  He says that at this point, he moved to Brisbane permanently with his family.

   The notification by Parwinder Singh

10. On 13 April 2017, the Director of Grewal & Sidhu Pty Ltd, Mr Parwinder Singh, contacted the Department via email.  The email provides the file number, the applicant’s date of birth, application number, and contact details for Mr Singh at Café Saffron.  The email says:

    “Hello, I just want to notify you that following employing is not reporting to to work since 23/01/2017 He was on 186 ENS (TRN 457 stream) his contracts expires on 22/5/2020.”

11. Given the level of detail in the email, and considering that it was sent to the Department voluntarily by Mr Parwinder Singh, it is difficult to accept the reconstruction of the facts contained in it by the applicant and Mr Parwinder Singh.  Following the Department’s issuing a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s ENS subclass 186 visa, on 31 July 2018, the applicant and Mr Parwinder Singh sought to recharacterise, or recontextualise, the email sent by Mr Parwinder Singh to the Department on 13 April 2017.

12. Following receipt of the NOICC, the applicant and Mr Parwinder Singh now assert that the applicant was on a period of unpaid leave, approved by Mr Singh as the sponsor to allow the applicant to care for his pregnant wife, between the dates of 23^rd January 2017 and 30 March 2017.  Because of the stress of the floods, Mr Parwinder Singh says that he forgot about the period of unpaid leave.

13. The Tribunal does not accept this explanation.  Rather, the Tribunal considers that the applicant and Mr Parwinder Singh have sought to recharacterise the information earlier provided to the Department by Mr Parwinder Singh once the consequences of that information in relation to the applicant’s visa became apparent.

14. Considering that the employer was a small, family run Indian restaurant, it is difficult to understand how Mr Parwinder Singh would forget that a reasonably key employee – his only employed cook – had been on an extended period of unpaid leave. Even if the Tribunal accepted this explanation, it is not supported by any contemporaneous documentary evidence.

15. In his oral evidence on 4 April 2019, and in his post-hearing statutory declaration dated 11 June 2019, Mr Parwinder Singh claims that he has, “reread the email I sent to Immigration on 13 April 2017. I now can’t remember that email but I accept it was sent by me.”

16. Mr Singh’s post-hearing statutory declaration is, in large part, an effort by him to recast the potentially damaging evidence he had given in relation to the applicant’s case on 4 April 2019.  He complains that:

    ·“Mr Boccabella had told me that the tribunal had refused an adjournment to allow me to give evidence in person at a later date so I was worried about complaining about the quality of the mobile phone line.”

    ·He complains that he had to be fully ready to give evidence from 5.00 am Indian time; and that he did not get to bed until 3 am the night before.

    ·He complains that his telephone conversation with the “tribunal member which was affected by my tiredness, worrying about my mother,” (who he says had fevers and was frail) “and the distorted audio quality, I think I made an error about focussing on this date of 30 March 2017”.

1. The 30 March 2017 date is the date that Mr Parwinder Singh says that he made the decision that he could not continue to employ the applicant, because of the damage the Lismore floods had caused to his restaurant.  It is an important date, as the evidence before the Tribunal suggests that the flooding in Lismore commenced the following day, on 31 March 2017.  In the delegate’s decision, the delegate queries the veracity of the story told by the applicant for the simple reason that it difficult to explain how a genuine decision to discontinue the applicant’s employment based on the floods could have been made before the floods actually happened.

2. The Tribunal shares the Department’s concerns, but irrespective of the time that the applicant was purportedly told he could not return to work (be it slightly before or after the floods), does not accept that the floods were the reason that the applicant’s employment was discontinued.  Rather, the Tribunal finds that the applicant, Mr Parwinder Singh, and Ms Priyanka Radhu, have endeavoured to recreate history, and utilised the Lismore floods (together with Ms Radhu’s pregnancy) in an effort to make it appear that the applicant was on unpaid leave prior to his visa being granted. 

3. The Tribunal finds that the applicant ceased work with his sponsor on 23 January 2017, as originally advised by Mr Parwinder Singh to the Department. 

4. The Tribunal has considered the complaints raised about procedural fairness issues by Mr Parwinder Singh following his evidence.  Whilst there was some minor telephone interference, there is no merit to any of the claims made.  The Tribunal went to considerable lengths in the hearing to make certain that its questions, and Mr Parwinder Singh’s responses were understood, clarifying its understanding at numerous junctures.

5. During the hearing, numerous exchanges took place between the Tribunal and Mr Boccabella, in relation to the unfolding of Mr Parwinder Singh’s evidence. Although the Tribunal would not ordinarily include lengthy passages from a hearing within a decision record, it considers it necessary to do so here in order to demonstrate the efforts the Tribunal went to with respect to Mr Parwinder Singh’s evidence, and in ensuring that the applicant was afforded procedural fairness by the Tribunal.   

   MEMBER: All right.  Why did you nominate the date of 23 January 2017, as being the date that Mr Singh was not reporting to work from?

   PARWINDER SINGH: He was on the leave.  Yes, he was on the leave and like I said, I was not in a very good state of mind at that time.  I’ve lost whatever I have worked for – my business, everything.  It was my first business and having two metres water in the restaurant, losing every single piece of thing that you have worked for and not able to know whether I will be - - -

   MEMBER: Mr Singh, was your restaurant insured?

   PARWINDER SINGH: It was insured, but they – we didn’t get a claim for that, because they said that it’s insured for storm damage and all that, but not for the flood, because the water came from the levy and most of the businesses down there, no one got insurance claims.

   MEMBER: Okay, if Mr Amrit Singh was on leave, why did you pick the date that his leave started, to tell the Department that he was no longer employed?

   PARWINDER SINGH: He was on leave from that particular date and like I’ve mentioned, I was not in a very good state of mind.  If you would have seen the situation, what I have gone through, having no money, no income coming from – I’m not sure whether I will be able to run the business, my kids was overseas, me and my wife worked in the restaurant all day just cleaning it up and by the time you go home, you miss your kids, because I couldn’t afford to go to India and get them back.  All these things – I was not even able to sleep, so my state of mind was not – it was, as I say, things was not going according – I was pretty stressed, pretty disturbed.

   MEMBER: When were you first approved as a sponsor?

   PARWINDER SINGH: Sponsor, the year 2013, I guess.  2013.

   MEMBER: Are you aware that as a sponsor, that you have obligations to keep records?

   PARWINDER SINGH: Yes, we do.

   MEMBER: Okay?

   PARWINDER SINGH: Because all the records were washed away. 

   MEMBER: I don’t believe that you’ve previously told the Department that the records were unavailable because of the flood.  My understanding is that what you’ve previously told the Department is that you kept informal records in relation to leave?

   PARWINDER SINGH: The record for Amrit Pal’s leave was given – it was verbal leave.  He asked me first, so – and all of the records, like – so, my computer, all the documents, pieces of papers of the restaurant, everything what was filed in the restaurant up there.  Even the tax documents and all that, they all went away.  We have - - -

   MEMBER: But that’s not what I’m asking.  What I’m saying is that I don’t believe that you have, at any stage, told the Department that the records were unavailable because of the flood.  Okay?  What is reflected in the decision record in front of me and correct me if I’m wrong, Mr Boccabella, the information in front of me indicates that what you said about the leave arrangements, were that they were verbal.  So, you’ve just told me something which is potentially inconsistent. 

   MR BOCCABELLA:  In folio 19, Member, Mr Singh gave a detailed account of that in writing.

   MEMBER:  Okay.  Let me go there.

   MR BOCCABELLA:  From the past.

   MEMBER:  Sorry, Mr Boccabella, is folio 19 the letter dated 24 January 2017?

   MR BOCCABELLA:  Yes.

   MEMBER:  Outlining the periods of leave.

   MR BOCCABELLA:  Yes.

   MEMBER:  Yes, look that’s not what I’m asking about, but thank you, because it relates to the time of leave.  What I’m saying, Mr Singh, is that the delegate’s decision record reflects that:

   The visa holder’s sponsor has stated he only runs a small business and as such, all leave agreements are verbal. 

   But what you have just told me is that any records, which would include leave records, are unavailable because of the flood.  That is not the same reason that you gave to the Department for the lack of information about the periods of leave.

   MR BOCCABELLA:  Well, with respect, Member there are - - -

   MEMBER:  No, no, please Mr Boccabella.

   MR BOCCABELLA:  I don’t think that’s a fair question and I object.

   MEMBER:  Well, then - - -?

   MR BOCCABELLA: Can I speak please?

   MEMBER: Not yet.  Why is that not a fair question, Mr Boccabella?

   MR BOCCABELLA:  Well, they’re not inconsistent.  The agreements are verbal, but he has the records.

   MEMBER:  I have put it to him to tell me whether he thinks that it’s inconsistent.  He is entitled to respond to that, but I don’t think that there is a problem with the question per se.

   MR BOCCABELLA:  I don’t think that you’ve articulated what the delegate said accurately.

   MEMBER:  I’ve read it.

   MR BOCCABELLA:  Why don’t we go to the actual words.

   MEMBER:  I have read it verbatim from the decision record.

6. A lengthy exchange then took place between the Tribunal and Mr Boccabella, ultimately resulting in agreement that the Tribunal is reading from Folio 8 of the Departmental File, Section “C” of the 31 October 2018 Record of Decision of Whether to Cancel Under Section 109 of the Migration Act 1958, a copy of which was provided to the Tribunal by the applicant. The dialogue then continues between the Tribunal and Mr Parwinder Singh:

   MEMBER:  What I’m asking is that he’s told me that all of the records were washed away, and I had asked him about the records relating to leave.  Mr Singh?

   MR SINGH: Yes please.

   MEMBER: Yes, you did just tell me that all of the records, including leave records, had been washed away in the flood.  Is that correct?

   MR SINGH: When you asked me about the records, it was all the contracts, all the expenses, all the documents of the restaurant related to all the employees.  Everything was and I thought – clearly did not understand that you were just asking for that particular leave.  It was verbal leave, but I was trying to explain that all the records have for the employees, for the work, for the business and all the fax documents, they all were washed away in the flood.  But that particular leave was a verbal communication.  It was because I remember my staff by name, everything, so he just asked me for leave, and I was able to provide that.

7. Ultimately, Mr Parwinder Singh told the Tribunal that although he was aware of his obligations as a sponsor to maintain employment records, and that he kept records for paid leave, he did not keep any records in relation to unpaid leave. 

8. Mr Singh told the Tribunal that the applicant had asked him for unpaid leave to care for his pregnant wife.  He could not provide any clarity about these discussions, for example, the length of time that the applicant told him he wanted to take unpaid leave for.  Given that the applicant was the only employed cook in the business (Mr Parwinder Singh being the other cook), the Tribunal was surprised that there were no discussions about the length of time, or details surrounding the period of unpaid leave.  The Tribunal gave Mr Parwinder Singh the opportunity to reply to these concerns:

   MEMBER: How long did you think you needed to take over work for him?

   PARWINDER SINGH: As long as he needed, because he’s a good chef.  He knows about the business.  I worked a long time, you know - - -

   MEMBER: You must have had some discussion about how long it might be, just for planning purposes?

   PARWINDER SINGH: We never discussed that, to be honest, how long it’s going to be, you know, if he’s not going to return, but it understood that he would return and he actually wanted to return.  He actually told me that he was coming to work, but there was no work.

   MEMBER: That’s not what I’m asking you about, Mr Singh.  What I’m asking you about is the discussion you had about how long the leave would be for.  So, Mr Amrit Singh says to you that he wants some leave, because his wife is pregnant.  You’ve just told me that you don’t keep records – written records – for unpaid leave.  I’m asking you, how long he was to be on unpaid leave for.  Are you there?

   PARWINDER SINGH: Yes, I’m there.  I’m thinking he – that he asked me for the leave, and I’ve granted him.  That was for sure and it was up until the – what was the date?  I’m still trying to recover that conversation with him.  I’m trying to recover that conversation with him and remember up until what date he asked for leave for.  But it’s back to - - -

   MEMBER: You either recall or you don’t recall?

   PARWINDER SINGH: I’m still recalling it.  Just give me a second, so I can exactly recall. 

   MEMBER: Because, I might have some difficulty accepting that in a two-cook business, that you would not have had some discussions about how long Mr Singh was going to be away.  That might cause me some difficulty accepting your evidence.  That’s why I’m asking you if you can recall?

   PARWINDER SINGH: I guess it was for until the 30th of March, because that’s still when he called me and said, “I’m coming to work” and I said to him, “There’s no work for you”. 

   MEMBER: But there’s no record of that anywhere that’s in writing?

   PARWINDER SINGH: Not said in writing, no, but it was verbal.

   MEMBER: The information in front of the tribunal appears to indicate the floods commenced on the 31st of March.  Is that correct?

   PARWINDER SINGH: That is – please can you repeat that again please?

   MEMBER: Yes.  When did the floods commence?  The information that is in front of me appears to indicate that the floods commenced on the 31st of March?

   PARWINDER SINGH: It was the 30th of March, the floods came in – the town was evacuated on the 30th of March.

   MEMBER: Well, how could you know on the 30th of March that the flooding was going to result in your restaurant needing to close down?  I’m sorry, I can’t hear what you’re saying?---You’re breaking up.  I can’t hear you,

   ***

   I can hear you now.  What I’m asking is, how could you have known on the 30th of March – if that is when Mr Singh called you to say he was returning to work – how could you know at that point, prior to the flooding having concluded, that your restaurant would be – you know, need to be shut down?

   PARWINDER SINGH: We – because we evacuated on the 30th.  All the businesses evacuated on the 30th.  There was a heavy – there was a warning going on and the water was already in to the town on the 30th and according to the warning, that it’s going to be a heavy, big flood and we couldn’t manage taking anything, because the water was coming so quick, heavy rain and all that.  The street was cut.  I’m only recalling when I went there after the flood, from the water, when the water was over my – half of my height – managed to go there and see what happened.  It was – yes, and like – just going through that trauma that I - - -

9. The Tribunal is prepared to accept Mr Parwinder Singh’s evidence that his restaurant was impacted by the Lismore floods in March-April 2017. The Tribunal does not accept Mr Parwinder’s Singh’s evidence in relation to the circumstances surrounding the cessation of the applicant’s employment with Grewal & Sidhu Pty Ltd.  Rather, the Tribunal finds that the applicant was not on a period of unpaid leave, but had ceased work with his sponsor on 23 January 2017. This finding is consistent with the unsolicited advice that Mr Parwinder Singh gave to the Department by email on 13 April 2017.  The Tribunal does not accept Mr Parwinder Singh’s evidence that he was mistaken about the date.  The date is consistent with the date that he signed the employment contract that was provided to the Department in conjunction with the visa application. 

10. The Tribunal does not accept the evidence of Mr Parwinder Singh that the email sent by him to the Department, unsolicited, should be interpreted to mean that the applicant was on leave.  There is a suggestion made by the applicant’s representative that the email does not actually say that the applicant no longer works for the sponsor.  This is mincing words, and ignores the plain meaning of what was said in the email, which was, “that following employing is not reporting to work since 23/01/2017,” and that the applicant “was on 186 ENS (TRN 457 stream).  The email refers to the applicant in the past tense – there is no suggestion that he was merely on leave and returning.

11. The Tribunal finds that the story now told by Mr Parwinder Singh, that the applicant was on unpaid leave in order to care for his wife, and could not return to work as a cook because of the floods, has been contrived once the impact of his advice to the Department, in relation to the applicant’s visa, became apparent to him.

    The financial documentation before the Tribunal

12. The Tribunal’s finding that the applicant’s assertion that he was on unpaid leave from 23 January 2017 is contrived is supported by other evidence that is in front of the Tribunal. It was made plain to the applicant on more than one occasion that the Tribunal had concerns about the information before it indicating that there had been a lack of earnings reported by Grewal & Sidhu Pty Ltd, in relation to his employment.

13. The Tribunal carefully particularized these concerns, enabling Mr Boccabella to take notes, and explained that the information indicated:

    That the only periods in which the applicant’s employer, Grewal and Sidhu Pty Ltd, reported his earnings to the ATO are as follows:

    ·Period from 15/07/2013 to 30/06/2014 – total salary and wages of $36,711.00, tax of $6,446.00 withheld; and

    ·Period from 01/07/2016 to 30/06/2017 – total salary and wages of $26,552.00, tax of $5,262.00 withheld.

14. Following the hearings, the applicant provided the Tribunal with a copy of his Individual Tax return for the periods 01/07/2014 to 30/06/2015, and 01/07/2015 to 30/06/2016. They are accompanied by a letter from his accountant, which says:

    “We have acted as accountants for the above mentioned client. We advise that his 2015, 2016 and 2017 Income Tax Returns were prepared and lodged before the corresponding due dates under our lodgement program with the Australian Taxation Office.

    As per our client’s tax return his occupation is a Cook and his income and PAYG summary was from Grewal and Sidhu Pty Ltd (ABN 74 160 695 689).”

15. The applicant’s accountant was not called as a witness by the applicant.  The letter provided does not, in the second paragraph, identify which “tax return” it is referring to.  The Tribunal is unable to place any weight on the letter to establish that the applicant worked continuously for Grewal & Sidhu given the limited detail provided,

16. The Tribunal asked that the applicant provide “as filed” information, such as the actual tax returns that were filed with the Australian Taxation Office by him, and the “as filed” payroll information submitted by Grewal & Sidhu to the ATO (noting that Mr Boccabella told the Tribunal the employer could provide information, as referenced earlier). Both individual tax returns provided to the Tribunal by the applicant clearly indicate on the front page, “This copy may not be lodged with the ATO”.

17. The applicant has also provided a letter from “Vibrant Business & Taxation Services Pty Ltd,” the accountant for Grewal & Sidhu since January 2017.  The letter confirms that there were no termination payments made to the applicant in the period following January/February of 2017.  The Tribunal does not consider the lack of a termination payment to be evidence that the applicant was in fact on unpaid leave in the relevant period.  The letter further asserts that all PAYG payments are in order, but only during the period that this accountant has been responsible for the accounts, since January of 2017.  In other words, this letter does nothing to explain the periods of concern to the Tribunal, which are most particularly the financial years ending 30 June 2015 and 30 June 2016.

    The PAYG information supplied by the applicant

18. The applicant has provided a PAYG statement for the year ending 30 June 2014, which confirms the information provided by the ATO for that period, indicating total salary and wage payments of $36,711.00, and withheld tax of $6,446.00.

19. The applicant has also provided PAYG statements for the years ending 30/06/2015 and 30/06/2017, which are the years that the s.375A Certificate material asserts there were no earnings reported by Grewal & Sidhu Pty Ltd for the applicant.  These notices assert the following earnings and payments:

    ·Period from 01/07/2014 to 30/06/2015 – total salary and wages of $53,986.00, tax of $10,329.00 withheld; and

    ·Period from 01/07/2015 to 30/06/2016 – total salary and wages of $33,492.00, tax of $6,362.00 withheld.

20. Further, the applicant has provided a PAYG statement for the year ending 30 June 2017, which confirms the information provided by the ATO for that period, indicating total salary and wage payments of $26,552.00, and withheld tax of $5,262.00 is correct.  This PAYG statement has been signed electronically by Mr Parwinder Singh on 9 August 2017. 

21. Curiously, the PAYG statements provided by the applicant for the years ending 30 June 2014; 30 June 2015; and 30 June 2016 are all electronically signed and dated by Mr Parwinder Singh as at 15 April 2019 – following the time of the 4 April 2019 hearing in this matter.  There is no explanation provided for the dating of the PAYG statements in this manner. 

22. The Tribunal notes that the PAYG information supplied appears to correlate with the applicant’s Notices of Assessment for the relevant period, which appear on ATO letterhead.  The Tribunal accepts that the Notices of Assessment are genuine, but they do not reveal anything more than the amount the applicant earned in the relevant period, and the amount of tax payable, less the PAYG amounts held.  The Tribunal does not have concerns about whether the applicant was working, or paying tax.  Rather, the Tribunal’s concerns are whether the applicant was working for Grewal & Sidhu Pty Ltd, in view of the Departmental information about his reported earnings and tax withholdings.  The Notices of Assessment do not reveal who the employer was, and the PAYG statements that have been dated 4 April 2019, whilst they correlate, do not reveal that were contemporaneously lodged with the ATO.  The Tribunal prefers the information obtained from the Department, to information that has been post-dated by Grewal & Sidhu Pty Ltd, following the first hearing in this matter.

1. The Tribunal notes that, despite the Tribunal clearly indicating to the applicant that it wanted to see the “as filed” information directly from the ATO, it has not been provided with this information. 

2. The Tribunal has been provided with the applicant’s Commonwealth Bank Account statement for the period from 6 December 2018 through 5 March 2019. This information postdates the relevant period, as the Tribunal must resolve the question as to whether the applicant was, as he says, on unpaid leave at the time his visa was granted.

3. Although the Commonwealth Bank Account details are those that also appear on the computer generated pay slips provided, the Tribunal notes that it has not been provided with bank documents that would corroborate that the applicant actually received pay from the sponsor in to this bank account during the relevant periods. As it is the same bank account as the applicant has given information about to the Tribunal for the 6 December 2018 through 5 March 2019 period, it is reasonable for the Tribunal to assume that he would have access to his earlier statements, if he wished to provide them.  

4. The computer generated payslips reference a SunSuper account; yet the Tribunal also does not have information from SunSuper that would corroborate wage payments having actually been made during the periods in which the Departmental information indicates no earnings were reported.

5. As the applicant was:

   ·represented by Mr Boccabella, a very experienced migration specialist and barrister;

   ·and the Tribunal squarely raised its concerns that the applicant may not have been working for Grewal & Sidhu Pty Ltd in view of the s375A certificate material (and again, despite Mr Boccabella’s protestations about not being given a copy of the material, full particulars were provided);

   ·and the Tribunal expressed a clear desire to see “as filed” documents and none have been provided; and

   ·there is a lack of any corroborating “third party” evidence, such as from the Commonwealth Bank, SunSuper, or the integrated client file from the ATO for periods in question,

   the Tribunal has genuine concerns about the employment arrangements between the applicant and Grewal & Sidhu Pty Ltd.

6. In the overall circumstances of this matter, the Tribunal prefers the information before it from the Department, indicating that there were no earnings reported for the applicant during the periods from 01/07/2014 to 30 June 2015 and 01/07/2015 to 30/06/2016. This causes the Tribunal to place little weight on the explanation offered by Mr Parwinder Singh for his email advice to the Department, indicating that the application stopped work on 23/01/2017. 

   The circumstances of the applicant’s wife’s pregnancy

7. The applicant and his wife, Priyanka Radhu, assert that he took unpaid leave, in order to support her to attend medical appointments and give birth at the Logan hospital, rather than in Lismore. Her evidence is that she became “spooked” because her friend had a baby that had stopped growing, and the doctors in Lismore did not realise this.

8. It is not possible for the Tribunal to make a determination about whether this subjective desire was a genuinely held concern by Priyanka Radhu.  The Tribunal acknowledges that she has provided a copy of her Logan Hospital Medical Records to the Tribunal.  These medical records indicate an address in Richlands, near Brisbane, as early as 10 December 2016.  This is prior to the point in time that the applicant says he took “unpaid leave” from his job in Lismore.

9. The applicant, Mrs Radhu, and Mr Mandeep Singh all assert that the address belongs to their close friend, Mr Mandeep Singh, with whom Mrs Radhu was staying in order to facilitate her ability to attend appointments in Logan. The Tribunal does not accept this explanation, and thinks it more likely that the applicant and Mrs Radhu were residing in Richlands at least from December of 2016.  The Tribunal is prepared to accept that they may have resided with Mr Mandeep Singh, but does not accept that the reason Mrs Radhu listed her address as being in Richlands was to facilitate her ability to attend a hospital in Logan, borne from fear that the facilities in Lismore would be inadequate.

10. The medical notes provided reveal that the pregnancy was “low risk” and that Mrs Radhu “declined AN classes” – meaning antenatal classes.  It is difficult to reconcile a lack of desire to attend antenatal classes, reflected in the hospital records on more than one occasion, with a deeply held concern about the Lismore facilities being inadequate such that Mrs Radhu would leave her husband behind, to relocate without him, and reside with her husband’s friend. The hospital records also indicate that Mrs Radhu, rather than giving birth at Logan, “May T/F to MMH (in catchment area).” This shorthand means that Mrs Radhu “May transfer to the Mater Mother’s Hospital”, a hospital located within South Brisbane.  The inference that can be drawn from this is that a Richlands’ address is within the catchment area for South Brisbane, given its proximity, but that a Lismore address, more than 200 kilometres away, and in a different state, would not be.

11. The Tribunal finds that, as of December of 2016, Mrs Radhu was residing in Richlands, with the applicant.  Even if she wanted to attend a different hospital to give birth, there is no objective evidence before the Tribunal indicating that she had received medical advice not to travel, or to be on bedrest, as she asserts. The submissions filed by Mr Boccabella assert that Mrs Radhu was having her first child “when approaching aged 30,” without any corresponding medical evidence to support the assertion that this age somehow placed her at increased risk.  Moreover, the Queensland Birth Certificate provided reveals that Mrs Radhu was 28 years old at the time she gave birth. While it may not be inaccurate to say that 28 is “approaching” 30, the Tribunal does not consider 28 to be out of the normal age bracket for an educated woman, as Mrs Radhu is, to give birth for the first time. This was her first baby, and as such, the Tribunal considers it more likely that her husband would have been residing with her.  As a consequence, the Tribunal does not accept that it was only on 23 January 2017 that the applicant decided to take “unpaid leave”.  The Tribunal finds that by this point in time, he was already residing with his wife in the Richlands suburb of Brisbane. 

12. Given the distance between Lismore and Brisbane, the Tribunal finds that his employment would likely have ended by this point in time, and that he was not planning to return.  For this reason, the Tribunal considers that the original date of cessation of work advised to the Department by Mr Parwinder Singh the date the employment ended.

    The applicant’s return to Lismore and Café Saffron, post-cancellation

13. Much has been made by the applicant, and his representative, at the hearing, about his having “returned” to work for the Café Saffron in December of 2018. The Tribunal has also been provided with a copy of a Residential Tenancy Agreement for the applicant and his wife, indicated they have entered into a 6-month lease for a property in Lismore, commencing on 11 July 2019. 

14. The Tribunal is prepared to accept that the applicant has returned to live in Lismore, and has done some work for Café Saffron, following his visa being cancelled by the Department.  In the circumstances of this matter, the Tribunal is not prepared to accept that this is evidence that the applicant did not cease his intention to be employed by Grewal & Sidhu Pty Ltd.  Rather, the Tribunal views the applicant’s return as a post-cancellation reconstruction effort to create the appearance of an intention. If the floods were genuinely the reason that the applicant’s employment ended, the Tribunal notes that it was more than 19-months after the floods, and shortly after receipt of the Department’s cancellation decision, that the applicant re-engaged with Grewal & Sidhu Pty Ltd.

15. As the Tribunal has found that the applicant was not employed by Grewal & Sidhu Pty Ltd, his sponsoring employer, at the time his visa was granted, the Tribunal finds that his circumstances had changed such that an answer provided by him on his visa application was incorrect.

16. Specifically, the Tribunal finds that the applicant’s response that he intended to take up the sponsored position for at least two years was no longer correct, as he had ceased employment as at 23 January 2017 at the latest. As the applicant did not notify the Department of his change in circumstances prior to his visa grant, the Tribunal finds that there was non-compliance with s.104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    What is the correct information?

20. The applicant was granted his ENS (subclass 186) visa on 3 February 2017, on the basis that he would be employed for two years by his sponsoring employer, Grewal & Sidhu Pty Ltd. The Tribunal has found that the applicant’s employment with his sponsor ended as at 23 January 2017, at the latest, prior to the date of the visa grant. 

21. As a consequence of the Tribunal finding that the applicant was not on unpaid leave, as he asserts, but had ceased his employment prior to the grant of the visa, the change in circumstances meant that the applicant’s declaration that he would be employed with his sponsor for a period of at least two years following the visa grant was incorrect. 

22. As the Tribunal has found that the applicant did not update the Department and provide the correct information, the Tribunal weighs this in favour of cancellation.

    The circumstances in which the non-compliance occurred

23. The Tribunal does not accept either the applicant’s argument that he took unpaid leave in order to assist his wife to attend medical appointments related to her pregnancy, nor does the Tribunal accept the assertion that the applicant’s cessation of employment was due to the Lismore floods.  The Tribunal finds that both explanations are post cancellation reconstructions of events, developed opportunistically by the applicant, in collaboration with his wife and his former sponsor.

24. As the Tribunal has taken a dim view of the explanations provided, and has found that the applicant ceased employment prior to the visa grant, the Tribunal considers that the grant of the visa was based wholly on incorrect information.  The Tribunal considers that the applicant has been untruthful, and deliberately so.  If there was another explanation for the email sent by Mr Parwinder Singh to the Department on 13 April 2017, the applicant has not offered any explanation that has been borne out on the objective evidence.  Rather, the applicant has clung to an explanation that is inconsistent with the earlier information provided to the Department by his employer, in circumstances where the applicant could have readily obtained corroborating documentary information from the ATO, his bank, or his superannuation fund.  Both the applicant and Mr Boccabella were placed on notice by the Tribunal of its concerns, and has elected to provide the Tribunal with documentary evidence that has largely been created either by the applicant, or on his instructions, or by his employer. 

25. Given the materiality of the incorrect information to the visa application, the Tribunal weighs this strongly in favour of cancellation.

    The present circumstances of the visa holder

26. The applicant and his wife, are both people who are making efforts to advance their lives in Australia, and to work hard, educate themselves, and create a life for themselves and their daughter. They have clearly found themselves in a predicament following the email advice sent by Mr Parwinder Singh to the Department, which led to the chain of events culminating in visa cancellation.

27. The Tribunal acknowledges that the applicant has now resided in Australia for a very significant period of time, having arrived as a student in 2007.  He has completed his studies as a cook, and worked as a cook, as well as a Council bus driver, and in other employed roles.  He has established strong friendships in the community. 

28. The Tribunal also acknowledges that from December of 2018, the applicant has returned to work for his sponsor.  The Tribunal weighs this particular factor neutrally, as the Tribunal has, for reasons explained earlier in this decision, viewed this as part of an effort to shore up a post-cancellation story that aligns with his having been on unpaid leave.  However, the Tribunal views the continued contribution by the applicant and commitment to support himself through work, positively.

29. The applicant’s wife, Priyanka Radhu, has completed additional qualifications while in Australia, in Aged Care.  She has gained employment working for Bupa Aged Care.  The Tribunal acknowledges that both the applicant, and Mrs Radhu, are committed to their young daughter, and want to bring her up in Australia.

30. The Tribunal acknowledges that the applicant’s child, Amreen Kaur Lally, who has recently turned 3-years of age, is an Australian citizen.  However, the Tribunal considers that she has gained citizenship as a direct consequence of the applicant having provided incorrect information to the Department.  This is because she was born in the interval between the grant of permanent residency to the applicant on 3 February 2017, and cancellation on 31 October 2018.  Had this child been born prior to the grant of permanent residency (which the Tribunal considers the applicant would not have met the criteria for given its findings about the cessation of his employment on 23 January 2017), or after cancellation, she would not have gained citizenship. Clearly, this is not a factor that can be held against this innocent child, and the Tribunal weighs her citizenship, and the applicant and Mrs Radhu’s positive contributions, in their favour, as a factor against cancellation.

    Subsequent Behaviour of the Visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act

31. The applicant has complied with his obligations under the Act as required.  The Tribunal does not accept his version of events.  The Tribunal weighs the applicant’s compliance very slightly in his favour.

    Any other instances of non-compliance by the visa holder known to the Minister

32. Although the applicant had two prior instances of non-compliance whilst on a subclass 573 visa, and subclass 572 visa, as outlined in the delegate’s decision record, the Tribunal considers both instances to be reasonably insignificant in the broader scheme of things, and in consideration of the length of time the appliance has been in Australia.  Ultimately, the applicant was granted a subclass 457 visa by the Department following these earlier minor instances of non-compliance with study conditions. The Tribunal weighs these instances neutrally, neither for, nor against, cancellation.

    The time that has elapsed since the non-compliance

33. The non-compliance occurred when the applicant did not advise the Department his employment with Grewal & Sidhu Pty Ltd had ceased, which was 23 January 2017, at the latest.  It has now been just over 3 years.  The Tribunal does not consider this to be a lengthy period of time in the context of the length of time it can take to contemplate decision making processes in both the Department, and now the Tribunal.

34. However, the Tribunal acknowledges that a 3 year period of time is significant for a young family, and that much has happened in the lives of the applicant, his wife, and now child, in this time frame.  Balancing these factors, the Tribunal weighs the length of time neutrally, as the Tribunal has found that the applicant’s own conduct in not advising the Department is the factor that led to the chain of events that has since unfolded.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

35. There is no information before the Tribunal suggesting that the applicant has breached any law since the non-compliance. The Tribunal gives this slight weight in the applicant’s favour.

    Any contribution made by the holder to the community

36. The applicant and his wife are involved positively in their community, and have been involved in the Sikh community. There is nothing remarkable about the contributions made by them, but the Tribunal considers that they have been productive, ordinary community members and gives this some weight as a factor against cancellation.

    Other relevant matters

37. The applicant’s representative has provided the Tribunal with detailed submissions about the consequential cancellations of the applicant’s wife, Priyanka Radhu’s visa, and the impact of this on the applicant’s young Australian citizen daughter, Amreen.  The Tribunal has considered these submissions. 

38. As both the applicant’s and his wife’s visas will be cancelled, the Tribunal considers it highly unlikely that Amreen will be separated from her parents. Rather, the Tribunal thinks it likely the applicant, his wife, and child, will return to India as a family unit.  Having been here for an extended period of time, the Tribunal understands that they would prefer to remain in Australia.

39. The applicant’s representative’s submissions somewhat dramatically assert that Amreen “ought not be forced to live in relative poverty in India”.  As both of her parents are educated, with work experience, the Tribunal does not accept that their future (although it may not be the one they hoped for) will be one of destitution.

40. Nor does the Tribunal accept the representations that Amreen, as an Australian citizen child will be disadvantaged as a “temporary visa holder” without Indian citizenship. This is because, the representative asserts, that the Constitution of India prevents the holding of dual citizenship.  There is no suggestion that Amreen could not reside in India as a permanent resident were her family to make the decision that they did not wish to cancel her Australian citizenship.  In other words, she is not without choices, and will have two loving parents to support her.

    Whether the visa cancellation may result in Australia breaching its international obligations?

100. The representative made detailed submissions regarding Australia's obligations under the Convention on the Rights of the Child (CRC). The representative referred the Tribunal to the decision of Member Chapman in Rajendrakumar Jethalal Patel (PATEL (Migration) [2019] AATA 1427). In Patel, despite Member Chapman’s findings that the applicant had been dishonest, and this weighed strongly in favour of cancellation, he did not cancel as submissions were made which made him consider that there were realistic prospects that the applicant’s young Australian citizen son faced realistic prospects that his parents (who by that point had returned with the child to India), would return him to Australia alone, to live in the care of friends, splitting the family unit.

101.   There is no suggestion before this Tribunal that the applicant and his wife would endeavour to leave their 3 year old daughter behind in Australia, and therefore the Tribunal does not consider this matter to be analogous to the unique situation that confronted the Tribunal in Patel. In this matter, there has been no suggestion that the family would be separated. The delegate’s decision record reflects that “The RMA has noted in their submission the child will accompany her parents overseas should the family be required to depart Australia.”

102.   The Tribunal has also considered Australia's obligations pursuant the Convention on the Rights of the Child (CRC) and acknowledges that in taking actions concerning children, the best interest of the child shall be a primary consideration. Mr Boccabella submits that the child ought not to be forced to live in relative poverty in India. No objective evidence was provided to further this statement.  The applicant has a Diploma of Hospitality, and a Certificate IV in Commercial Cookery, and Mrs Radhu has an Australian Certificate III in Individual Support in Aged Care, as well as a Masters Degree in Disaster Management and Bachelor of Arts, both from Panjab University in India.  Mrs Radhu also has a Graduate Diploma in Industrial Safety Management. The applicant is 35-years of age, and Mrs Radhu is turning 32 this year.  The Tribunal considers that they both have the qualifications, experience, and age on their side, to be able to rebuild their careers in India. The Tribunal does not accept that Amreen is destined for a life in poverty with two intelligent parents to support her.

103.   The Tribunal accepts that the applicant and his wife want Amreen to benefit from Australia's lifestyle, education, and social support and gives some weight to these factors in the applicant's favour. The Tribunal is not satisfied that Amreen will be deprived of an education, basic levels of healthcare or other social services in India. The Tribunal does acknowledge that if the applicant and his wife choose not to acquire Indian citizenship for her, given the concerns raised by their representative and desire for her to retain Australian citizenship, that Amreen may not be entitled to the full complement of rights afforded to Indian citizens.

104.   The Tribunal accepts that Amreen is an innocent third party, and that she has had no role in these unfortunate circumstances. The Tribunal considers that, as a 3 year old, the applicant’s daughter is of an age where, particularly in the company of her parents, she will adept well to the transition.  She has not yet commenced formal schooling. The Tribunal considers that the best interests of Amreen will be met, as there is no risk that she will be separated from her parents. The Tribunal has considered the effects of cancellation on her, but is not satisfied that this would result in a breach of Australia's obligations under CRC.

Whether the visa would have been granted if the correct information had been given?

105.   The Tribunal has considered all of the evidence before it, and has carefully weighed up all of the relevant circumstances in this case. The Tribunal gives weight to the fact that the applicant has an Australian citizen child, and has considered the expressed desire by the applicant and his wife to remain in Australia, with Amreen, so that she has a “bright future”.

106.   Against this factor, and the other factors weighed in the applicant’s favour as set out above, the Tribunal is satisfied that the applicant’s employer sponsored (subclass 186)  visa would not have been granted had the delegate considering his visa application been aware that the applicant had ceased his employment with Grewal & Sidhu Pty Ltd on 23 January 2017.  This factor weighs very strongly in favour of cancellation.    The Tribunal considers the breach in this case to be serious and significant, and one which seriously undermines the integrity of Australia's immigration program. The Tribunal considers the factors in favour of cancelling the visa outweigh those against cancellation of the visa.

107.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

108.   The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

109.   The Tribunal has no jurisdiction with respect to the other applicant.

Bridget Cullen
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

104Changes in circumstances to be notified

(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4)Subsection (1) applies despite the grant of any visa.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.