Singh (Migration)

Singh (Migration) [2020] AATA 387 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manjeet Singh
CASE NUMBER:  1916533
HOME AFFAIRS REFERENCE(S):          BCC2018/4026074
MEMBER:Alison Mercer
DATE:6 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.
Statement made on 06 January 2020 at 11:08am

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – Café Manager– employment terminated within the required employment period of 2 years– alleged underpayment issue with sponsor – applicant made a genuine effort to remain employed for the required period – psychological and emotional hardship – detailed and largely credible evidence provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 137Q,189
Migration Regulations 1994, r 2.50AA

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 2019 to cancel the applicant’s subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.137Q on the basis that she found that the applicant had terminated his employment with his nominating employer within 2 years of commencing that employment. The delegate was not satisfied that the applicant had made genuine attempts to remain employed for at least 2 years, and further found that the grounds in favour of cancelling the visa outweighed those against.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Tribunal received a review application from the applicant on 24 June 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Jonathan Granger, as his representative and authorised recipient for correspondence.
On 8 October 2019, the Tribunal wrote to the applicant via his agent to invite him to attend a hearing on 31 October 2019. He was also asked to provide any written submissions and/or documents in support of his case 1 week prior to the hearing.
The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent. The Tribunal received written submissions with supporting documents on the morning of the hearing.
Following the hearing, the Tribunal received additional material on 8 November 2019.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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).
Before turning to its assessment of the legal issues, the Tribunal considers it appropriate to set out the history of this matter in some detail.
Department history
The Department’s records indicate that the applicant initially travelled to Australia in February 2013 as the holder of a subclass 573 (Higher Education Sector) student visa, valid until 15 March 2016.
They further indicate that the applicant applied for a subclass 187 visa on 27 November 2015, for which he was nominated in the occupation of Café or Restaurant Manager by Ace Complete Party Supplies Pty Ltd (‘Ace’). He was granted the subclass 187 visa on 6 June 2016.
Notice of Proposed Cancellation
On 12 March 2019, the Department wrote to the applicant to advise him that it proposed to cancel his subclass 187 visa pursuant to s.137Q of the Act, on the basis that the Department had received information indicating that he commenced employment with Ace in June 2017 but his employment there was terminated prior to December 2017, within the 2 year period specified in s.137Q(2) (being 2 years from the date he commenced employment).
The applicant was advised that the Department conducted monitoring of the applicant’s nominating employer, Ace, on 29 August 2017, at which time the owner, Mr Abheney Guleria advised that the applicant was employed as one of several managers of the café operated by Ace, that Mr Guleria was the owner and also worked there as a manager himself, and that the applicant attended work when instructed to as needed, but was a full time employee with hours as per the weekly roster. The letter stated that when a Department officer rang the applicant on 28 August 2017, he was not at work and he declined to speak on the phone, citing fear of immigration fraud. Although he agreed to respond to a Department email, there was no record that he did so.
The letter further stated that Ace had sponsored, or attempted to sponsor, other visa applicants for various visas. For these sponsorship applications, as well as its nomination application in relation to the applicant, Ace provided organisational charts. It was noted that the applicant was included in a chart for October 2015, but that his role had been filled by another person in the November 2017 chart. On 21 December 2017, Ace applied to nominate another Café or Restaurant Manager for a subclass 187 visa, and the applicant’s name was not on the organisational chart provided with this application. According to the letter of offer provided with that nomination, the new nominee started in the role of Café or Restaurant Manager on 2 October 2017.
The letter further stated that the Department’s records indicated that the applicant had travelled outside Australia several times in the previous 2 years and had listed his occupation on his passenger cards as follows:
·6 June 2017 – driver
·27 June 2017 – business owner
·20 March 2018 – transportation
·29 August 2018 – transport
Further, the letter stated that the applicant was a 50% owner of FZR Pty Ltd, which was registered on 30 January 2017, the other owner/director being the applicant’s brother, Gurjeet Singh Batth. According to ABN Look up, the business was based in the ACT (postcode 2607) until 15 March 2018, when its registered address changed to Victoria (postcode 3977). It was noted that both the applicant and his brother had advised the Department in April 2018 that they had moved to Victoria. It was further noted that the applicant was sponsoring his wife for a Partner visa, in relation to which he provided a copy of his ACT Heavy Vehicle Driver Licence (Class HR) to the Department as proof of his identity.
The author of the letter noted that the applicant was granted his subclass 187 visa on the basis of Ace, based in the ACT (which is classified as regional Australia), and was expected to work for that employer in regional Australia for at least 2 years from the date of visa grant. The author further noted that the applicant appeared to have commenced employment with Ace in June 2016 but when contacted by the Department in August 2018, he declined to give information about his employment, which raised concerns about the genuineness of his employment with Ace.
Further, it was noted that Ace had sponsored, or attempted to sponsor, other visa applicants for various positions, including Café or Restaurant Manager. The fact that the applicant was not listed in this role in a November organisational structure chart suggested that he was no longer employed as such and therefore did not fulfil his 2 year obligation This conclusion was supported by the fact that the applicant had apparently started another business with his brother in January 2017, which moved, along with the applicant and his brother, from the ACT to Victoria in or about March – April 2018. This conclusion was also supported by the fact that the applicant had provided the Department with a heavy vehicle licence and had stated on his incoming passenger cards in 2017 and 2018 that he was a driver, a business owner and involved in transport.
The author considered that the above indicated that the applicant was not working for Ace as a Café or Restaurant Manager from June 2016 to June 2018, as required, and therefore his subclass 187 visa was liable to cancellation pursuant to s.137Q(2). The applicant was invited to provide a response within 14 days.
Applicant’s response(s)
On 10 April 2019, the applicant’s newly appointed representative, Mr Granger, provided a submission and supporting documents. In summary, the agent made the following points in response to the Department’s letter above:
· it was submitted that the applicant met s.137Q(2)(b) as he had made a genuine attempt to be engaged in employment with Ace for the required period;
·     it was also noted that there were several inaccuracies in the Department’s letter, which if corrected, supported the contention that the applicant made a genuine attempt to remain employed for 2 years;
·     the applicant commenced employment with Ace in May 2015, albeit in a part time role (not June 2017, as asserted by the Department). He commenced in the nominated role on 6 June 2016, the date he was granted a subclass 187 visa, and continued in this employment until 3 December 2017. In total, this was approximately 18 months and longer if the 12 months prior to the grant of the subclass 187 was counted;
·     the applicant’s PAYG and ATO records for 2015 – 2018 supported the above;
·     in relation to the Department’s record of its discussions with Mr Guleria, owner of Ace, in August 2017, it was denied that the applicant was working ‘on call’ as implied by Mr Guleria stating that the applicant came into work when instructed to do so by Mr Guleria. Instead, it was asserted that the applicant was working full time in August 2017, as confirmed by his payslips and tax officer records;
·     in relation to a Department officer’s call to the applicant in August 2017, the applicant confirmed that he had concerns as the officer was unwilling or unable to fully identify himself and therefore he asked the Department officer to email him. It was submitted that his fears were not unjustified as the Department itself had issued warnings about persons impersonating Immigration staff as part of a scam;
·     moreover, it was emphatically denied that the applicant did not provide an email response to the Department’s email – he did so on 29 and 31 August 2017 and copies had been provided as evidence of this. No adverse inference should be drawn from the erroneous statement by the Department that the applicant did not respond;
·     in relation to the applicant’s absence from the November 2017 organisational structure chart for Ace, the applicant stated that he had confirmed with his employer that he intended to travel to India to get married and to resign from his role after 18 months. This was not disputed. His understanding of the period in November prior to his last day on 3 December 2017 was that he was providing training and handover for the new Café or Restaurant Manager whom Ace would ultimately nominate. The applicant acknowledged that his employment with Ace terminated on 3 December 2017;
·     in relation to the occupations listed on the applicant’s incoming passenger cards in 2017 and 2018, it was asserted that the applicant worked part time as a driver, secondary to his primary employment as a Café Manager in 2017. This was in accordance with visa regulations as he held a visa without work restrictions. He submitted that it was easier to write ‘driver’ (passenger card of 6 June 2017) due to the limited space on the card, which also did not have the option to list a second occupation. However, in his 2016/17 tax return, the applicant listed his main occupation as Café or Restaurant Manager, but declared $1982 in ‘other income’ for that financial year, being a nominal amount from his secondary work as a driver;
·     as a self-employed driver, the applicant preferred to refer to himself as a ‘business owner’ when returning to Australia on 27 June 2017 due to reasons of pride or ego, given he was a 50% owner of FZR Pty Ltd (although mostly a silent owner). He ceased the partnership with his brother on 12 February 2018;
·     it was not disputed that the applicant put ‘transport/ation’ on his passenger cards of 20 March 2018 and 29 August 2018 as it was conceded that he had ceased employment with Ace on 3 December 2017;
·     the applicant did provide a Heavy Vehicle licence as proof of identification in respect of his wife’s Partner visa application but he did not hold this licence in 2016. It was issued on 30 November 2017, 1 week prior to the applicant ceasing work with Ace, so the Department’s supposition that he was working as a driver prior to this period was completely unfounded. His identification as a ‘driver’ in 2016 passenger cards reflected the fact that he drove taxis during that period, outside his full time employment hours with Ace. Again, this was not a breach of his subclass 187 visa, and he declared this as ‘other income’ in his 2016 tax return;
·     the applicant’s notification to the Department in April 2018 that he had moved from the ACT to Victoria indicated that he did not consider that he had anything to hide, and that he continued to engage with the Department. No adverse inference should be drawn from this, as it was consistent with his ceasing employment with Ace in late 2017, travelling to India and marrying and returning to Australia to live with his brother and sister in law (Gurjeet Singh Batth and Rupinder Kaur Bath) in Victoria in shared accommodation. They had lived as a family unit in Australia since June 2013. In additional, Rupinder Kaur Bath was pregnant when the applicant got married, and the family considered that she would need the support of the applicant and his new wife, Harjeet Kaur (once she was granted a visa to come to Australia), in addition to her husband. It was also noted that Mrs Bath was an Australian citizen and Mr Batth had a pending citizenship application;
·     the Department’s policy guidelines (PAM3) indicated that in considering whether an applicant had genuinely tried to be employed for the required 2 year period, the decision maker could take into account previous employment with that employer as the holder of another kind of visa, such as a subclass 457 visa. It was reiterated that the applicant worked part time (20 hours per week) while holding a student visa, and he continued to work these hours once he had applied for the subclass 187 visa, because (according to the current agent) he was misadvised that he could not work full time until granted the subclass 187 visa;
·     the applicant completed 18 months of full time work for Ace, which was significant, and it was noted that under previous Departmental policy, 12 months was considered to represent a genuine effort. The applicant was employed by his nominating employer for 75% of the prescribed period;
·     the reasons that the applicant resigned in December 2017 were twofold: he was not being paid in accordance with his employment contract but was not prepared to make a formal complaint which might jeopardise his visa status and he was not confident to deal with Fair Work Australia (his payslips were evidence of this); and he was under family and cultural obligations to return to India to marry. His marriage to Harjeet Kaur was arranged by their families and it was easier for him to quietly resign from Ace to fulfil these obligations;
·     in 2016/17, the applicant was employed full time by Ace and was paid $44,137 instead of $49,000 (taking into account 3 weeks of leave without pay in June 2017, when he travelled to India to get engaged). He was therefore underpaid by approximately $5,883 in 2016/17;
·     the applicant’s original purpose in coming to Australia was to study, and he did so successfully, then he hoped to seek employment in his field and apply for permanent residence. After the grant of his permanent residence, he aspired to obtain Australian citizenship and had a pending application which had been affected by this visa cancellation. His brother was a permanent resident, and his sister in law was a citizen. The applicant hoped that his wife and child will be able to live with him in Australia;
·     his wife was pregnant with their first child, due 20 August 2019, and the cancellation of the applicant’s visa would cause either the refusal or withdrawal of her Partner visa application. The applicant would have no chance but to seek review of any cancellation decision, but if he did, he would not be eligible for a bridging visa B to travel back to India to visit his wife for the birth, and then return to Australia. This presented the applicant with an awful choice;
·     the psychological and emotional hardship that they would experience would be significant. This stress could have adverse health effects on the applicant’s wife, such as high blood pressure bringing on premature labour and/or a low birth weight baby;
·     the applicant cooperated with the Department at all stages of his immigration history and it was again disputed that he did not respond to the Department’s email in August 2017;
·     he did leave employment with Ace voluntarily in December 2017 but there was clear evidence he had been underpaid, given his contract of employment specified a salary of $52,000 plus superannuation (including 4 weeks of paid leave);
·     in the meantime, the applicant’s personal circumstances when he married on 1 January 2018 in India, and the Department was asked to take into account the compelling and compassionate circumstances in his case, particularly in relation to his wife, who was due to give birth in 4 months; and
· given all of the above, the Department should find that the applicant did not breach s.137Q as he made a genuine effort to remain employed.
Cancellation decision
On 18 June 2019, the delegate made a decision to cancel the applicant’s visa. In reaching this conclusion, the delegate found as follows:
· a ground for cancellation existed under s.137Q(2)(a) as – on his own evidence – the applicant’s employment with Ace terminated within the required period of 2 years starting from the day on which he commenced that employment. The delegate found that the applicant voluntarily ceased employment with Ace on 3 December 2017 (after which he moved to Victoria), yet in his email response to the Department in August 2017, he stated that he had no intention to leave the ACT for at least 2 years;
·     from the documentary evidence provided by the applicant, he did in fact work full time for Ace from 6 June 2016 to 3 December 2017, as this evidence, and the applicant’s explanations, overrode the concerns raised by his passenger card occupations and absence from the November 2017 organisational chart for Ace;
·     the applicant had completed 18 months of full time work for Ace following the approval of its nomination of him and the grant of the subclass 187 visa. This fell short of the required 2 year period, which began on 6 June 2016;
·     overall, the applicant had failed to provide evidence that he made a genuine effort to remain engaged in employment with Ace, given he did not engage with Ace about his alleged underpayment. In addition, he had raised personal issues which suggested that his reason for ceasing work on 3 December 2017 was not related to his employment conditions. The delegate did not consider that these raised compelling reasons to resign, or that they represented factors beyond the applicant’s control. Rather, he chose to cease employment prior to the expiry of the 2 year period;
· a ground for cancellation was therefore made out under s.137Q(2);
·     in relation to the purpose of the applicant’s travel to and/or stay in Australia, and whether he had any compelling reason to stay in Australia, the delegate found that the applicant had not met the employment terms of his visa, and therefore had not complied with the intention of the RSMS program;
·     it was acknowledged that the applicant had family in Australia, and that his wife and child were currently waiting offshore for visas. It was further acknowledged that the applicant was employed in Australia but the delegate found no reason that he could not find work in the same field if he returned to India. The delegate did not consider these to be compelling reasons for the applicant to stay in Australia and gave them minimal weight in the applicant’s favour;
·     no weight was given to the applicant’s compliance with any visa conditions to which he was subject as the delegate found that the subclass 187 visa did not have any conditions imposed on it;
·     in relation to the degree of hardship that might be caused to the applicant and/or any family members if his visa were cancelled, the delegate noted that the applicant had resided in Australia since February 2013, some 6 years and 4 months. She also acknowledged that he provided support to his brother and sister in law, both of whom were now Australian citizens. She accepted that a degree of hardship would arise for them if the applicant had to leave Australia, but that it would be possible for them to visit one another;
·     while the applicant was currently employed in the transportation industry in Victoria, and cancellation of his visa would cause him some financial difficulty, the delegate considered that the applicant would be able to find employment in this field in India;
·     the applicant’s wife was offshore and pregnant with their first child, due in August 2019, and the delegate acknowledged that cancellation of the applicant’s visa would result in the refusal or withdrawal of her Partner visa application (lodged in March 2018). Moreover, even if the applicant sought review of the cancellation decision, he would be entitled to a bridging visa E, which did not give him the right to travel outside Australia an return. He would therefore be required to remain onshore and miss the birth of his child, or to travel to India and abandon any review. It was acknowledged that either choice involved a degree of hardship for the applicant and his family. The delegate gave this factor some weight in favour of the applicant;
·     the delegate found that the circumstances in which the ground for cancellation arose were due to the applicant’s decision to terminate his employment with Ace within the 2 year period, and did not accept that he made a genuine effort to remain engaged in that employment for the required period. She gave this factor minimal weight in the applicant’s favour, particularly given he provided no evidence of having tried to resolve the alleged underpayment issue with Ace;
·     the applicant had been in Australia as the holder of various visas from early 2013, during which time he had completed a Diploma of Business Administration on 19 June 2015 and an Advanced Diploma of Business on 4 December 2015 (despite having originally been enrolled in a Bachelor of Electronic Technology degree). His enrolments for his Bachelor of Electronic Technology degree and a Bachelor of Business degree were cancelled and the delegate considered that the applicant should have transferred to a subclass 572 (Vocational Education and Training Sector) student visa if he had no intention to undertake tertiary study. This, combined with his failure to stay for 2 years with his regional employer, led the delegate to conclude that the applicant had a history of failure to meet the requirements of his Australian visas. She gave this factor minimal weight in his favour;
·     there was no information to suggest that anyone else’s visa would or might be consequentially cancelled, and no weight was given to this factor;
·     while cancellation of the applicant’s visa might result in him being detained and/or removed from Australia under s.189 if he no longer held a valid visa, the delegate noted that the applicant would be entitled to a bridging visa if he sought review of the cancellation. The other legal consequences, such as being subject to s.48 (restricting most onshore visa applications), were not unreasonable given his non-compliance with the subclass 187 program intentions;
·     in relation to whether the cancellation would cause Australia to breach any of its international obligations, the delegate noted that the Australian courts had generally held that it was in the best interests of a child to remain with his or her family, and that in this case, this would be the case if the applicant’s child remained with the applicant’s wife in India following the birth, particularly as the applicant could elect to voluntarily return there in the event of the cancellation of his visa. There was no evidence to suggest that cancellation would breach Australia’s non-refoulement obligations; and
·     there were no other matters to consider. Overall, the delegate found the factors in favour of cancellation of the applicant’s visa outweighed those against.
Tribunal submissions

In summary, the applicant’s agent made the following submissions on 30 October 2019:
· the delegate erred in her assessment of whether the applicant had satisfied the Minister that he made a genuine effort to be engaged in his regional employment for the required period in accordance with s.137Q(2)(b);
·     it was not disputed that the applicant’s employment terminated within the period of 2 years of him starting that employment;
·     as provided to the delegate in response to the NOICC and confirmed in the decision record, the applicant was employed in the nominated employment from 6 June 2016 to 3 December 2017, a period of 3 days less than 18 months (75% of the required employment period);
·     however, the delegate’s assessment that the applicant had failed to make a genuine effort to be engaged in that employment for the full 2 years failed to recognise Departmental policy, which gave weight to periods of less than 2 years;
·     furthermore, the Tribunal was asked to take into account a major discrepancy in the Department’s PAM3 policy guidelines, as published in its Legend online system, which might have contributed to the delegate’s decision to place no weight on any period of employment less than 2 years;
·     the delegate’s decision stated that ‘In response to the Notice the visa holder’s agent has submitted that completion of at least 12 months of employment following RSMS grant was previously considered favourably under policy. I noted that the requirement is explicitly stated as two years and this is the basis under which I am considering the matter;’
·     at the time of the delegate’s decision, PAM3 (5 May 2019 to 30 June 2019) stated:
In assessing whether the visa holder has made a genuine effort, the delegate should consider:
o   The visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances);
o   The possibility that the visa holder, in collusion with the employer, did not commence work within the six month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;
o   In the case of termination, the period of the visa holder’s employment with the employer prior to the termination of the employment;
o   Any other matter which is relevant to the commencement or termination of the employment.
·     however, PAM3 as currently published in Legend.com stack 18 October 2019 to date states as follows:
Under policy, periods of more than 12 months may generally be accepted as representing a genuine effort. However, a visa holder can be found to have made a genuine effort if employed for under 12 months. Officers must consider the individual merits of each case when determining whether there has been a genuine effort; and
Any other matter which is relevant to the commencement or cessation of employment.
·     the above was consistent with previous Departmental policy, as it was prior to 15 December 2015, when the reference to 12 months was removed and replaced with:
In assessing whether the visa holder has made a genuine effort, the delegate should consider:
o   The visa holder’s reasons for, and/or circumstances leading to, the failure to commence work or to complete the 2 year employment period (family or personal considerations may be a factor under these circumstances);
o   The possibility that the visa holder, in collusion with the employer, did not commence work within the 6 month period or resigned shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;
o   In the case of termination, the period of the visa holder’s employment with the employer, prior to the termination of the employment; and
o   Any other matter which is relevant to the commencement or termination of the employment.
·     policy researched for the period 16 December 2014 to 15 December 2015 is consistent with the current PAM3 (version in force on Legend from 18 October 2019 onwards); that is, the reference to ‘generally, periods of more than 12 months may be considered as a genuine effort’ is included;
· in December 2015, that phrase was removed, but it was reinstated to PAM3 as of 1 October 2019 and continues to be part of current PAM3 guidance on s.137Q(2)(b);
·     it was reiterated that the applicant worked for 18 months in the nominated position, as measured from the date of visa grant;
·     furthermore, he had worked part time in that position whilst holding a bridging visa and awaiting the outcome of his subclass 187 visa application (having been incorrectly advised by his former agent that his bridging visa A was subject to the same work limitations as his previous student visa);
·     his overall employment with Ace was therefore from May 2015 (when he commenced working there 20 hours per week) until 6 June 2016 (when he commenced full time, as his PAYG and ATO records and payslips demonstrated) then until 3 December 2017;
·     in accordance with current policy, this period should be considered as a genuine effort, and policy permitted a decision maker to accept that a period of less than 2 years could constitute a ‘genuine effort’ by an applicant (where it was also at least 12 months). The applicant’s full period of employment with Ace was 2 years and 7 months, and the full period whilst holding a subclass 187 visa was 3 days short of 18 months;
·     the reasons for the early termination of the applicant’s employment were reiterated, in the context of the current policy about ‘genuine effort.’ The reasons that the applicant resigned in December 2017 were twofold:
o   he was not being correctly in accordance with his employment contract as his employer was failing to adequately provide annual leave payments and at times had underpaid the applicant for certain weeks. The applicant was aware of this but was not prepared to make formal complaints as he believed that his visa status could be at risk and he was not confident to deal with Fair Work to make a formal complaint at that time; and
o   the applicant was under cultural and family obligations in India to marry, and his family had arranged for his marriage to Harjeet Kaur to take place there on 1 January 2018;
·     within the Sikh/Hindu culture, marriage carried obligations not only between the bride and groom but between their respective families. Once the applicant’s marriage was arranged by his and his wife’s families, he had a significant obligation within his culture to meet those obligations. It was widely recognised that marriage in Sikhism/Hinduism was not just a mutual contract between 2 individuals, or a relationship of convenience, but a social contract and moral expediency, in which the couple agree to live together and share their lives, doing their respective duties, to keep the divine order (in respect to their spiritual believes) and the institution of the family intact;
·     evidence of the applicant’s underpayment by his employer was provided, and had now been acknowledged by that employer, when the applicant finally felt confident to challenge him on the issue earlier this year, after receiving the NOICC. He did so with the encouragement of his agent;
·     the Tribunal was referred to email correspondence between the applicant and his employer, and the applicant’s PAYG records. The emails confirmed that the applicant was back paid $7,049 in the 2018/19 financial year by the owner of Ace, Mr Abheney Guleria;
·     it should be noted that in the email correspondence, Mr Guleria initially paid the applicant the full gross amount of back pay when challenged on this matter on 3 June 2019. However, accounts reconciliation in July 2019 caused a recalculation of the amount less PAYG withholding tax and certain other specific calculations, the result being that the applicant was requested to refund $3,630.19 to Mr Guleria, and with the applicant retaining the correct amount of $4,252.18 for unpaid wages;
·     further evidence was also provided in relation to the nature of the applicant’s marriage arrangements in 2017 and 2018, as these also caused him to decide in November 2017 to resign from Ace, as follows:
o   in June 2017, the applicant went to India to get engaged;
o   before he departed, he made a verbal agreement with his employer, Mr Guleria, that he could take 3 months of extended leave without pay once his wedding arrangements were made;
o   he became engaged on 17 June 2017. Based on his belief that Mr Guleria had verbally agreed to extended leave, the wedding date was planned for 1 January 2018;
o   the applicant returned to Australia, and returned to work on 27 June 2017 in his nominated role;
o   in October 2017, the applicant’s employer informed him that he would not be able to grant the applicant 3 months’ leave for his wedding as promised earlier, as he was about to open a new café in January 2018. Mr Guleria suggested that the applicant postpone his wedding;
o   the applicant was shocked and extremely disappointed by his employer reneging on their agreement. He contacted his parents to discuss postponement; however, he was advised that any variation to the already agreed date would be impossible as both families had already made all arrangements for the wedding hall, catering, orchestra etc, as per the wedding rituals and a considerable amount of money had already been spent on bookings and tickets;
o   more significantly, the families on both sides had already printed wedding invitations and started distributing them. Therefore, any change of date was out of the question;
o   the applicant felt that he had no other option but to go ahead with the wedding on 1 January 2018, as originally planned. He was forced to give greater weight to his personal matters, family obligations and honour than his employment. He felt betrayed and was under significant pressure from his family to fulfil his wedding obligations. At the same time, he was being underpaid, as evidenced by the payroll discrepancies he identified;
o   this created an extremely uncomfortable atmosphere at work and resulted in him deciding to resign on 3 November 2017, giving 1 month’s notice as evidenced in his resignation letter, in which he gives the above reasons and also confirms that he had not been granted 3 months’ leave, as promised earlier;
o   he completed his employment at Ace on 4 December 2017, and it is noted that his employer accepted the resignation on 10 November 2017 and stated in his written acceptance that ‘I find your reasons for resign [sic] the job legitimate enough and consequently understand your decision;’
·     this should weigh positively in the applicant’s favour when assessing whether he had made a genuine effort to remain employed for the required period or not;
· in terms of the current PAM3 guidelines in assessing s.137Q(2), it was reiterated that the applicant was not being paid correctly as per the terms of his employment contract, he had a verbal agreement with his employer that he would be able to take 3 months of unpaid leave for his wedding in India, but the employer reneged on this agreement, and the employer acknowledged that this was a legitimate reason for the applicant to resign from his employment;
·     if it were not for his employer’s decision to renege on the previous verbally agreed extended leave, the applicant would have continued in his employment. Moreover, if he could have changed the wedding date to a later date, he would have done so, and therefore would have met the 2 year requirement. However, that was not possible;
·     there was no evidence of collusion between the applicant and Mr Guleria for the applicant to terminate his employment within 2 years as a means for the applicant to obtain residence. The applicant’s employment was genuine, as evidenced by Ace’s payroll advice and the applicant’s PAYG and ATO records, and had been accepted as such by the delegate, and that it continued for nearly 75% of the required 2 year period;
·     the applicant had provided an explanation for why his employment was terminated prior to the expiry of the 2 year period, and his employer (by implication) accepted that this was reasonable;
·     the applicant had been underpaid during his employment with Ace, and while he did not challenge this while working there, he did so in June 2019, when it was acknowledged and rectified by his employer;
·     the applicant’s original purpose in coming to Australia was to study, which he successfully did, gaining qualifications enabling him to seek and gain employment here, and apply for permanent residence. He wished to apply for Australian citizenship and had a pending application, which he believed was being delayed due to the cancellation of his subclass 187 visa;
·     the applicant’s brother was an Australian permanent resident and his sister in law was an Australian citizen. The applicant hoped that he, his wife and child could call Australia their home;
·     the applicant’s subclass 187 visa was granted with ‘nil’ conditions and there was no evidence or suggestion that he had breached the conditions of any previous visas held;
·     the applicant and his family would suffer hardship if his visa was cancelled. His wife had been pregnant with their first child at the time of the cancellation decision and subsequently gave birth on 20 August 2019. The cancellation of the applicant’s visa caused them to withdraw his wife’s application for a Partner visa, which she had applied for in March 2018. The applicant had chosen to seek review of the cancellation decision. However, as a result, he had been granted a bridging visa E which did not have travel rights, and thus had been unable to travel to India to see his wife and child or his parents. He and his family had suffered psychological and emotional hardship as a result, particularly as he was unable to attend the birth of his first child in India;
·     the delegate accepted that the applicant resided in Australia with his brother and his brother’s family, and provided support to them. Although the delegate found that the applicant would be able to visit them if he had to return to India, this was disputed, as it was asserted that the applicant’s visa cancellation and departure from Australia as the holder of a bridging visa E would create a 3 year bar for him being able to be granted a visitor visa, as well as bringing him within the ‘risk factor’ category for any temporary entry visas that had a genuine temporary entrant requirement;
·     the applicant worked legitimately in his nominated role for nearly 18 months of his 2 year obligation, and had worked there for 13 months as a permanent part time employee previously. He was underpaid and his employer reneged on a verbal agreement to give him 3 months of extended leave without pay for his marriage in India, and he therefore resigned due to the need to fulfil his family obligations in relation to the wedding, which could not be postponed. These facts were not disputed by his employer, who accepted his resignation on 10 November 2017 in writing;
·     the applicant had at all times cooperated with the Department, and it was demonstrably false that he failed to respond to their request for his response in August 2017. The delegate appeared to accept this, but drew a negative inference from the applicant’s student visa history, in that she found that the applicant had not complied with the student visa program as he was granted a student visa to study a University course but did not do so, instead undertaking vocational courses. While the applicant did cancel his original enrolment in the Bachelor of Electronic Technology degree at LaTrobe University in 2013, he then enrolled in a package course comprising a Diploma to Degree program, with the principal course of study being a Bachelor of Business degree at the University of Canberra. His enrolment in the package course was in 2013, and he was due to start the Bachelor degree component in February 2016. This was consistent with the grant of a subclass 573 (Higher Education Sector) student visa to him;
·     while the obligation to enrol at the University of Canberra commenced on 15 February 2016, the applicant’s student visa expired on 15 March 2016. He would not have been considered to have been in breach of condition 8202, according to the ESOS Act and Departmental policy, as he had 28 days after the cancellation of enrolment to enrol in an alternative course or depart Australia, and he took the former course of action; and
· thus, the Tribunal should find that, while the applicant did not complete the required 2 years of employment with Ace, he made a genuine effort to do so, and thus met s.137Q(2) and his visa should not be cancelled.
The supporting documents included the following:
·     extracts from PAM3 on Visa Cancellation – Regional Sponsored Employment Visas, dated 18 October 2019 (current version at time of hearing), 1 October 2019 to 17 October 2019, 5 May 2019 to 30 June 2019 (time of delegate’s decision to cancel), 10 April 2019 to 16 April 2019 (time of NOICC response), 2 March 2019 to 22 March 2019 (time of NOICC), 16 December 2014 to 21 December 2014, 1 January 2015 to 12 February 2015, 30 June 2015, 10 October 2015 to 16 October 2015 and 15 December 2015;
·     resignation letter from the applicant, dated 3 November 2017;
·     letter of acceptance from employer, dated 10 November 2017;
·     e tickets for the applicant and family members’ travel to India, issued 14 July 2017, for travel on 15 November 2017 and return on 17 January 2018; but with additional booking (issued same date) for travel from Melbourne to India on 7 December 2017;
·     email from Mr Guleria to the applicant dated 25 July 2019 regarding adjustments to reimbursed amount for underpayment, requiring applicant to refund $3,630.19;
·     CoE for the applicant for Bachelor of Business Administration, 15 February 2016 to 30 June 2017, issued 31 October 2013;
·     letter from Canberra Institute of Technology to the applicant, dated 7 August 2013, offering him a place in a Diploma of Business (course dates 9 August 2013 to 19 June 2015 and Advanced Diploma of Business (course dates 20 July 2015 to 4 December 2015);
·     letter from University of Canberra to the applicant, dated 15 August 2013, offering him a place in a Bachelor of Business Administration, to commence 15 February 2016 and end 30 June 2017;
·     marriage certificate for the applicant and Harjeet Kaur, registered 30 January 2018;
·     booking receipt for Celebration Villa Palace and Catering, 3 July 2017, receipt dated 10 August 2017 for unspecified wedding expenses, receipt from Singh Digital Studio for the wedding, issued 20 July 2017;
·     medical records confirming the applicant’s wife’s pregnancy, 12 February 2019, with estimated due date of 20 August 2019;
·     applicant’s PAYG payment summaries for 2014/15, 2015/16, 2016/17, 2017/18 and 2018/19;
·     payroll advice for the applicant as at 30 June 2019 from Ace;
·     applicant’s tax returns for 2015/16 and 2016/17;
·     payroll advice for the applicant for 1 June 2015 to 4 December 2017;
·     email from the Department dated 29 August 2017 requesting the applicant to provide further details of his employment at Ace and his residential details and history;
·     email response from the applicant of the same date indicating that he cannot read or access all of the contents of the above email and asking for it to be resent;
·     email dated 31 August 2019 from the applicant to the Department providing responses to the Department’s email queries of 29 August 2019; and
·     statement of licence details for applicant’s licence history in ACT, indicating that he was first issued with a heavy rigid vehicle licence on 30 November 2017, but has also held a temporary overseas visitor licence and a taxi driving licence prior to that.
Tribunal hearing

The applicant confirmed to the Tribunal that he came to Australia as a student in 2013. He said that his parents and 1 older brother remain in the Punjab in India, while another brother is here in Australia. The applicant confirmed that he was originally enrolled in a Bachelor of Electronics at La Trobe University as he intended to build on a Diploma of Electronics that he completed in India. However, he found the study pattern in the Australian course to be completely different from his Indian studies. He was also very homesick. The applicant said that he kept going in the degree course for 6 months before trying (unsuccessfully) to change courses at La Trobe University. When he was unable to do so, he enrolled in a lower level course in the Australian Capital Territory (ACT), as his brother and his brother’s wife were living and working there as the holders of subclass 485 visas. The applicant moved in with them and undertook a Diploma and Advanced Diploma in Business in Canberra. He intended to go on to complete a Bachelor degree in this field but was offered full time employment, so elected to pursue this instead. This was with Ace Party Supplies Pty Ltd (‘Ace’).
The applicant clarified that he had been working part time for Ace already while studying in Canberra, having been introduced to the owner by a friend. At that time, he was working for Ace for 20 hours per week, as per the terms of his student visa, as a Manager assisting the owner. He continued as a full time Manager after being nominated for the subclass 187 visa, and took on additional responsibilities with the other employees, for OH & S issues and so on. The owner, Mr Guleria, reduced his involvement as a result of the applicant assuming more responsibilities as a full time Manager. The applicant said that he started full time on 7 June 2016, but subsequently learnt that he could have worked full time earlier, while he still held a bridging visa A. He explained that his agent at the time said that his bridging visa A was subject to a 20 hour limitation, because his student visa had been subject to this condition, but in fact, once his student visa ceased, his bridging visa A no longer had this condition. In any event, he commenced full time as a Café or Restaurant Manager with Ace on 7 June 2016.
The applicant told the Tribunal that he first realised that he was not being paid correctly by his employer when he went on leave between August and September 2017 to return to India to become engaged. When he got back, he realised that he had not been paid for that period. In response to the Tribunal’s query, the applicant said that he did not raise the issue with his employer, as he was afraid to risk his visa. He intended to extend his contract there, and did not want to rock the boat. He said that, culturally, he was not confident to query the non-payment with Mr Guleria. He intended to raise it once his initial contract was over, and he was negotiating for another contract. The applicant said that he assumed his pay was fine once it resumed. He confirmed that he worked variable hours per week, and said that he did not check his payments carefully until around March or April 2019, on the urging of his current agent after he had received the NOICC. It was only then that he realised he had been underpaid on other occasions.
In relation to his marriage, the applicant said that he experienced family to get married, but he was not ready to do so for some time. He became engaged in around mid-2017, after his parents and the parents of his wife-to-be arranged the match. Once he returned to Australia, his family in India began planning the wedding for January 2018. He approached Mr Guleria to request 3 months of leave for this, as he did not want to just return to India for a short period to undertake the marriage ceremony, but instead wanted to spend time with his new wife and their families. He felt that Mr Guleria, who was from a similar cultural background, understood this, and at that time, Mr Guleria agreed to this. The applicant explained to the Tribunal that the wedding date, once set, was virtually impossible to reschedule, as various bookings for venues and services had to be locked in and paid for as soon as possible, and sufficient notice given to family members in Australia and the US so that they could travel to India for it. The applicant estimated that there were 400 to 500 guests invited, and that bookings were hard to secure between December and February each year as this was the Indian ‘wedding season.’ The applicant reiterated that Mr Guleria was aware of all of these factors and agreed that the applicant could take 3 months off from December 2017 when the applicant raised this with him in September 2017.
However, in early October 2017, Mr Guleria asked the applicant if the applicant could change or postpone his wedding date because Mr Guleria was opening a new business and would need the applicant to take more responsibility at work at Ace. The applicant said that he felt that Mr Guleria was uncomfortable making the request, as he knew what it meant for the applicant, but he nevertheless asked the applicant if he could postpone the wedding. The applicant said that he was shocked. He spoke with his parents, who made it clear that the arrangements could not be changed now, and it was futile to ask. The applicant noted that the copies of the airline tickets he had provided to the Tribunal indicated that his brother and sister in law had return tickets to and from India to attend the wedding, but the applicant’s return ticket date was open, as he intended to spend time with his wife after they married, before returning to Australia with her.
In response to the Tribunal’s query, the applicant said that the person who was to replace him as Manager started with Ace in October 2017, before 3 November 2017, when he tendered his resignation letter. When asked why this was, the applicant said that Mr Guleria did not discuss this with him, but he (the applicant) assumed Mr Guleria probably assumed that the applicant would resign in order to return to India to marry as originally scheduled. However, he said Mr Guleria did not know for sure that the applicant was going to resign until he actually did so on 3 November 2017. When asked why he chose to resign then, given he knew this was within the 2 year period required by his visa, the applicant said that he had to choose between his employer and his family, and he chose not to let his family down. He said that Mr Guleria tried to persuade him to have the wedding earlier, but they argued when the applicant said that this was not possible. The applicant said that if he had not adhered to the original wedding plans and dates, he would have been betraying his own parents, but also his wife and her parents, and he felt that he could not do this. His wife to be had already resigned her job to prepare for their wedding. The applicant said that any change to the date would affect a lot of people, not just him and his wife to be.
In response to the Tribunal querying why it appeared that the applicant’s resignation letter of 3 November 2017 and Mr Guleria’s written response to it had not been provided to the Department in response to the NOICC (particularly since the applicant and his current agent had made detailed submissions on other issues in response to the NOICC), the applicant said that he was under a lot of pressure at the time. His wife was pregnant by then. He recalled that he gave a copy of his resignation letter and Mr Guleria’s response to his agent, but did not recall whether they were submitted to the Department or not. He said that he was concerned to gather a lot of other documentary evidence to refute some of the NOICC allegations (for instance, that he had really been a truck driver when claiming to work for Ace, and the incorrect employment dates listed in the NOICC) as this seemed to be the focus of the NOICC. In response to the Tribunal’s query, the applicant said that he did not email his resignation letter but gave it to Mr Guleria in person, who in turn gave his written response to the applicant in person. There was no email trail to corroborate when this happened. The applicant said he did not appreciate that, months down the track, these letters would have such significance.
The applicant said that he was not expecting to be separated from his wife for the period that he had been, and that it had been particularly distressing for both of him that she gave birth to their son in India while the applicant was in Australia. He said that he was torn, as if he returned to be with his wife and son, he would not be able to return to Australia as he held a bridging visa E without travel rights.
The applicant confirmed that his Australian citizenship application was refused directly after his permanent residence visa was cancelled. Due to this, he and his wife decided that it was best for his wife to withdraw her offshore partner visa application, as he no longer had the required residency or citizenship status to be her sponsor. The applicant told the Tribunal that his wife and son (born in August 2018) were currently residing with her parents in India. His wife had had a caesarean birth and was still recovering from some complications with this, although she was now doing well. The applicant confirmed that he continues to reside with his brother and sister in law in Melbourne. His brother and sister in law have a 5 year old and a 1 year old, to whom the applicant is close. Financially, it had been difficult as he had not had work rights since his visa cancellation and had therefore been unable to send money to his wife for 2 months. His brother had supported him but the applicant felt bad about this. However, he had just been granted work rights on the day of the Tribunal hearing, and intended to find whatever work he could to earn an income.
In response to the Tribunal’s query, the applicant said that if his visa were cancelled, he would lose his future, and that of his wife and son. Everything he had done up until now would be for nothing. The applicant said that he and his wife started their family when they believed their child would be growing up in Australia, and if things had gone to plan, his wife would have obtained her Partner visa to come to Australia shortly after giving birth to their son. The applicant said that his parents and his parents-in-law don’t know that his visa has been cancelled. He had only told his wife and his brother in Australia. There was a lot of pressure on him. The applicant said that if had to depart Australia, it would be devastating for him but also his brother and sister in law would be emotionally affected, as the applicant was close to them, and to their children. Financially, he would not be able to easily come back to Australia to visit them, as suggested by the delegate, or vice versa. In response to the Tribunal’s query, the applicant said that he had no reason to fear harm if he returned to India, but considering that he was a permanent resident when he got married, the psychological effect on him and his wife if he had to return to India because his visa had been cancelled would be huge.
The Tribunal asked the applicant about FZR Pty Ltd, the Australian company in which he was involved with his brother. The applicant said that his brother registered the company, intending it to be a family business at some stage. The applicant confirmed that he only got a heavy vehicle licence in late 2017 when he knew he would not be returning to Ace. He wanted another employment skill. He confirmed that he had driven taxis while studying and while working for Ace, for which he had the appropriate licence in the ACT, but he only acquired the heavy vehicle endorsement in late 2017. His brother and he had considered a truck driving business once they had both moved to Melbourne (this occurred after they came back from his wedding in India) but he only did that for a short period. In response to the Tribunal’s query, the applicant said that as far as informing the Department that he had ceased employment with Ace in November 2017, he assumed his employer would notify the Department, and he didn’t really think that hard about it at the time due to the pressure he was under.
At the conclusion of the hearing, the Tribunal agreed to defer its hearing for the applicant and his agent to provide additional material in support of their case.
Post hearing submissions
On 8 November 2019, the Tribunal received the following additional material from the applicant’s agent:
· statutory declaration from Mr Abheney Guleria dated 8 November 2019, with annexed certified copy of the biodata page of Mr Guleria’s Australian passport.
In the statutory declaration, Mr Guleria states that ‘[t]he following letter of acceptance of resignation at Ciao Ciao Café and Cakes [the trading name used by Ace] issued to [the applicant] by me and signed on 10^th November 2017 is a true and correct letter and confirm that the signature on that letter is my authentic signature.’ A scanned copy of Mr Guleria’s letter of 10 November 2017 is included in the statutory declaration.
Does the ground for cancellation exist?
Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.
Commencement and termination of employment
The delegate accepted that the applicant commenced employment with Ace on 6 June 2016, but found that the applicant did not work there for the prescribed 2 year period; that is, until 6 June 2018. Rather, she found that the applicant, on his own evidence, ceased work on 3 December 2017, after approximately 18 months.
The Tribunal notes that the delegate expressed a number of concerns in the NOICC regarding whether the applicant was in fact working for Ace as a Café or Restaurant Manager until 3 December 2017, but that she ultimately accepted that he did, based on the documentary evidence and statements provided by the applicant. The Tribunal concurs with this finding.
Therefore, the Tribunal is satisfied that the applicant was employed full time as a Café or Restaurant Manager by Ace from 6 June 2016 but that his employment with Ace ceased within 2 years of his commencing full time employment there as a subclass 187 visa holder.
Genuine effort to be engaged
The delegate was not satisfied that the applicant had made a genuine effort to be employed by that employer for the 2 years required. She concluded that he made a voluntary decision to cease employment on 3 December 2017, and she did not accept the applicant’s explanation that he left due to a pay dispute. The delegate found that the applicant ceased employment for personal reasons, which she did not accept were compelling or circumstances beyond his control.
The applicant maintained that the reasons he resigned on 3 December 2017 were in fact compelling, and beyond his control. He argued that he left due to a combination of being underpaid, and his employer reneging on a verbal agreement to grant him 3 months of unpaid leave to attend his wedding in India in January 2018 and spend time there with his wife and their respective families. In relation to the former issue, the applicant told the Tribunal that he realised after he returned to work that he had not been paid while he was overseas in mid-2017 for his engagement, but did not take this up with his employer for fear of jeopardising his ongoing employment by being seen as a trouble-maker. In relation to the latter issue, the applicant maintained that once the wedding date was set, it was virtually impossible to change, and he and his family had made the wedding arrangements on the basis of the applicant’s agreed leave with his employer. Having this changed by his employer effectively meant the applicant had to resign as it was impossible for him to change the wedding date.
In addition, the applicant’s agent cited the Department’s policy guidelines, as set out in its PAM3, which (apart from a brief period in time) generally indicated that decision makers should give weight to the fact that an applicant had worked for 12 months for an employer when assessing whether that applicant had made a ‘genuine effort’ to remain employed by their nominating employer for the prescribed 2 year period. The applicant’s agent also noted that in fact, when the applicant’s total employment with Ace was taken into account (including part-time work undertaken while the applicant held a student visa and then a bridging visa), he had worked there for over 2 years at the time he resigned on 3 December 2017 (having commenced with Ace in May 2015).
The Tribunal is satisfied that the applicant has provided satisfactory explanations for a number of issues raised in the delegate’s NOICC and decision, and – based on the applicant’s oral and documentary evidence - the Tribunal accepts that:
·the applicant worked for Ace on a full time basis as a Café or Restaurant Manager from 6 June 2016 until 3 December 2017 having tendered his resignation on 3 November 2017;
·although the applicant incorporated a company with his brother, FZR Pty Ltd, in January 2017, he was not actively involved in any business activities external to Ace through this entity;
·the applicant did not obtain a heavy vehicle licence until 30 November 2017; and
·the applicant moved to Victoria with his brother and his brother’s family in or about March 2018 and notified the Department of this in April 2018.
The applicant has provided evidence indicating that he was underpaid during the course of his employment with Ace, which it appears that his employer has now conceded and rectified. However, the Tribunal is not satisfied that this is the reason that the applicant ceased work for Ace in December 2017 after resigning in November 2017. Rather, the Tribunal considers that the main reason he ceased work at this time was that his employer did not honour a verbal agreement between them that the applicant would be granted 3 months of unpaid leave from December 2017 to enable him to travel to India to marry in January 2018 and to thereafter spend time with his wife and their respective families. The only documentary evidence corroborating this is the applicant’s resignation letter of 3 November 2017 and his employer Mr Guleria’s letter dated 10 November 2017 accepting the applicant’s resignation. Neither of these letters was provided to the Department. As discussed with the applicant at the hearing, the Tribunal considered that this raised the question of whether they were genuine, or had been manufactured after the Department’s refusal decision, in order to address the issue of why the applicant ceased employment on 3 December 2017.
Having considered the issue carefully, the Tribunal accepts that these letters are genuine. In forming this view, the Tribunal gave weight to the following factors:
·the applicant’s detailed and largely credible evidence at hearing about his employment history; and
·the recent statutory declaration of 8 November 2019 (accompanied by photo ID) provided by Mr Guleria, the applicant’s employer, that his letter of 10 November 2017 was genuine.
The Tribunal therefore accepts that the applicant’s letter and the letter in response from his employer, dated 3 and 10 November 2017, are genuine, and that they were not provided to the Department in response to the NOICC as the applicant and his agent were at that time focussed on refuting various other allegations made in the NOICC and did not appreciate the significance of the resignation and acceptance letters until after the Department refusal decision was made.

The Tribunal has considered whether the underpayment and the request that the applicant not take 3 months of unpaid leave and/or reschedule his wedding were factors beyond the applicant’s control, such that it could be said that he genuinely tried to remain employed by Ace for 2 years.
The Tribunal does not accept that the applicant being underpaid by his employer was a factor beyond his control that caused him to resign on 3 November 2017. On his own evidence, the applicant had made a decision not to raise this issue with his employer until the end of his 2 years of full-time employment, despite the fact that it was open to him to do so earlier. Moreover, the Tribunal considers it illogical that the applicant would fail to raise the underpayment issue so as not to jeopardise his 2 years of employment, then voluntarily resign over that issue (without having raised it with his employer) within the prescribed 2 year period.
Rather, the Tribunal is satisfied that the main reason that the applicant resigned in late 2017 was over the apparent rescinding of his 3 months of unpaid leave from December 2017 to February 2018. There was little documentary evidence supporting the applicant’s claims in this regard; however, there is a reference in Mr Guleria’s letter of 10 November 2017 in response to the applicant resigning, in which Mr Guleria states that ‘… I find your reasons to resign the job to be legitimate enough and consequently understand your decision.’ This was made in response to the applicant’s resignation letter of 3 November 2017, in which he states that ‘… due to compelling personal problems, especially, as my wedding is due on 01 January 2018, and I have not been granted three months leave as granted earlier, I am not able to continue my employment with you…’ As noted above, the Tribunal accepts that these letters are genuine. Accordingly, the Tribunal finds that the applicant resigned from his employment on 3 November 2017 (effective 1 month later on 3 December 2017) due to the rescinding of his 3 months of unpaid leave. The Tribunal accepts that the applicant’s wedding was held in India on 1 January 2018 (having been booked prior to October 2017) and it was not feasible or reasonable for him to reschedule this to accommodate his employer’s request. The applicant told the Tribunal that he needed 3 months of unpaid leave as this included not only the wedding and associated social activities but also time with his wife, his family and her family. The Tribunal has considered whether the applicant could have negotiated with his employer to take a shorter period of time off in order to attend the wedding and associated social activities, and then return to Australia and his employment at Ace, and deferring until a later date spending prolonged time with his wife and their families in India. The Tribunal concludes that while it may have been possible theoretically for the applicant to do so, it would be unreasonable in all the circumstances to have expected him to do so when he had made plans on the basis of a pre-existing agreement with his employer that was then unilaterally altered by his employer, particularly considering the additional costs involved to the applicant of returning to Australia after his wedding and then returning to India at a later date. The Tribunal also gives some weight to the fact that the applicant’s and his wife’s families would also have had to rearrange plans to accommodate this, which the applicant was unwilling to request of them.
Having considered the matter carefully, the Tribunal finds that the applicant ceased employment with Ace on 3 December 2017, and while he did so voluntarily for personal reasons, he did make a genuine effort to remain employed for 2 years. In reaching this conclusion, the Tribunal also gives weight to the fact that the Department’s policy guidelines support giving an applicant the benefit of the doubt on this issue if they remained employed with the nominating employer for at least 12 months, as the applicant had been in this case. In this case, the Tribunal considers it appropriate to have regard to the Department’s policy on this issue.
Accordingly, the Tribunal is satisfied that the applicant made a genuine effort to be engaged in employment as a Café or Restaurant Manager for Ace for the required 2 year period.
The Tribunal therefore finds that the ground for cancellation in s.137Q(2) is not established. It follows that the power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.
Alison Mercer

Member

[2020] AATA 387

6 January 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction