Singh (Migration)

[2019] AATA 6134

Singh (Migration) [2019] AATA 6134 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspreet Singh

CASE NUMBER:  1909782

HOME AFFAIRS REFERENCE(S):          BCC2018/6164134

MEMBER:K. Chapman

DATE:15 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 15 October 2019 at 12:09pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – work other than in approved occupation in business of sponsor – worked in different occupation and nominated for different visa class by another employer – established own business – sponsoring business owned by applicant’s wife – business and financial difficulties and changes of location – breakdown of marriage and wife’s return to home country – applicant’s operation of the business without formal authority – new owner’s illness and delay in opening relocated business – self-sponsorship as bona fide business or to achieve migration outcome – long residence on series of temporary visas – credibility – inconsistent evidence of applicant and new owner – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8107(3)(a)(ii)

CASE

Botha v Minister for Immigration and Border Protection [2017] FCA 362

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (‘the Act’). The applicant, Mr Jaspreet Singh, is a national of India.

2. The delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant did not comply with condition 8107(3)(a)(ii) of his Subclass 457 visa because he performed work other than in a position in the business of the visa sponsor or an associated entity of the visa sponsor. The sponsor for the applicant’s visa is G and Jass Pty Ltd and he was originally nominated in the occupation of Chef to work in their restaurant on the Gold Coast. However, the delegate determined that the applicant worked in the occupation of Office Manager and was nominated for a Regional Sponsored Migration Scheme visa by another employer, and established his own cleaning business, in breach of his visa condition whilst holding the Subclass 457 visa sponsored by G and Jass Pty Ltd. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was granted his Subclass 457 visa on 21 April 2016. His then wife, Ms Gagandeep Kaur, was also granted a Subclass 457 visa as a secondary applicant. The standard business sponsor who nominated the applicant in the most recently approved nomination was G and Jass Pty Ltd (‘the sponsor’). Ms Gagandeep Kaur was the sole director and shareholder of the sponsor at that time. On 28 March 2019, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he failed to comply with condition 8107 of his Subclass 457 visa by working with ‘One Call Vacate’ (who attempted to sponsor him for a permanent visa through the Regional Sponsored Migration Scheme), and also operated his own cleaning company ‘Classic Klean’, when he was only permitted to work with the sponsor.

4. On 4 April 2019, the applicant responded in writing to the NOICC indicating that Ms Gagandeep Kaur had left him, departing Australia for India. He indicated he was depressed at that time with emotional and financial problems. His mother visited him from India to assist. The applicant explained that he made a bad decision to apply for the Regional Sponsored Migration Scheme following the advice of an immigration consultant. He was sponsored by the business One Call Vacate but alleged the owner used him to perform personal errands and threatened to withdraw her visa sponsorship of him. He claimed he did not know of documentation she created and that she falsely advertised his pest control licence when invoicing for work. The applicant advised that in April 2018 the new director of G and Jass Pty Ltd (Mr Mandeep Baniwal) informed him the caravan park at Helidon near the restaurant (which had relocated from the Gold Coast) would close and he was to take unpaid leave until the business could reopen. According to the applicant he had to establish his cleaning company, Classic Klean, in order to financially sustain himself until the restaurant could reopen in a new location. He advised that the new director took ill in March 2019 and was hospitalised which delayed the reopening of the restaurant at a new venue in Toowoomba. The applicant claimed he and his family would face hardship if the visa was cancelled. A supporting statement from the new director of G and Jass Pty Ltd, Mr Mandeep Baniwal, was also submitted to the Department. The Tribunal has duly considered the aforementioned response to the NOICC.

5. On 12 April 2019, the delegate cancelled the applicant’s Subclass 457 (Temporary Work (Skilled)) visa. On 18 April 2019, the applicant applied to the Tribunal for review of the visa cancellation decision, providing a copy of the delegate’s decision with his application. On 30 July 2019, the applicant was invited to attend a review hearing scheduled for 21 August 2019. Prior to the review hearing the applicant submitted documents including, but not limited to, written submissions, a statement from his mother, an assignment of debt notice, copies of Departmental documents pertaining to allegations from the owner of One Call Vacate (‘Ashleigh’) that the applicant was working in breach of his visa condition, text messages between the applicant and Ashleigh, menus for the new restaurant at Toowoomba, statement from Mr Mandeep Baniwal dated 13 August 2019, social media posts, supporting statement from Ms Faye Airne, organisational chart, payslips, food licensing information, commercial receipts, lease information, photographs, medical information pertaining to Mr Mandeep Baniwal, Business Activity Statements, media articles, and an application for divorce regarding Ms Gagandeep Kaur. All submitted information has been duly considered by the Tribunal.

6. The applicant appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. The Tribunal also took oral evidence from Mr Mandeep Baniwal by telephone. The applicant confirmed to the Tribunal that no other person was providing oral evidence in the review. The representative of the applicant attended the review hearing.

7. The Tribunal granted time for post-hearing evidence to be submitted, including that pertaining to a response to information raised with the applicant pursuant to s.359AA of the Act. On 30 August 2019, the Tribunal received written submissions, a joint reference from Ms Sky Walker and Mr Andrew Webb, further text message exchanges, and medical information pertaining to the applicant. On 17 September 2019, the Tribunal wrote to the applicant requesting him to provide a copy of the ATO Integrated Client Account View Activity Statement for G and Jass Pty Ltd from the date of first GST registration. On 26 September 2019, the applicant submitted the aforementioned ATO statement for the period 14 January 2017 to 23 September 2019. The Tribunal has duly considered all material submitted by the applicant.

8. 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

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. Condition 8107(3)(a)(ii) provides, as is relevant to the present review, that the Subclass 457 visa holder must work only in a position in the sponsor or an associated entity of the sponsor. In this instance condition 8107 was attached to the applicant's visa, which was granted on 21 April 2016 and which, but for its cancellation, was valid until 21 April 2020.

11. During the hearing the applicant advised that he disagreed with the delegate’s visa cancellation decision because he wants to work as a Chef in Australia, his restaurant was struggling and closed down and that is why he went to another job to improve his financial circumstances. With regards to the NOICC and his response to it, the applicant indicated that had no further information to add.

12. The applicant explained that he first came to Australia in December 2007 as the holder of a Student visa. He studied various vocational education courses at private colleges including business, hospitality management and commercial cookery. The applicant has held various Student visas, Bridging Visas and a Subclass 457 visa. He currently holds a Bridging Visa E. The applicant presently resides in Toowoomba and has done so for more than two years.

13. The applicant worked part time in various Indian restaurants during his studies. He applied for the subclass 457 visa on the basis of sponsorship by G and Jass Pty Ltd. His then wife, Ms Gagandeep Kaur, was the sole director and shareholder of the sponsor at the time. The sponsor initially traded as the ‘Golden Punjab Restaurant’ in the Gold Coast region and employed the applicant as well as his wife. The applicant agreed that Ms Kaur had sponsored them both utilising the company G and Jass Pty Ltd. The applicant worked at the Golden Punjab Restaurant for around one year in the occupation of Chef. Ms Kaur ran the front of house and two other staff were employed. The restaurant initially traded well, then the prevailing business conditions changed. The applicant informed the Tribunal that Ms Kaur then decided to close the restaurant and relocate to Helidon which is in a country area. After a period of around two months, the sponsor opened a new restaurant trading as ‘Desi Spice Village’ at Helidon.

14. According to the applicant, Desi Spice Village commenced trading in early 2017. He was the only Chef there, Ms Kaur was also working and there were two other staff. The applicant explained that in May 2017 Ms Kaur attempted self-harm and was taken away by the Police. She departed Australia for India shortly thereafter and left the relationship. The applicant indicated he attempted to contact Ms Kaur but was unable to do so. Apparently her mother threatened the applicant. He indicated this was a difficult time for him and submitted statements showing that his own mother came from India to be with him (with the Tribunal accepting that this visit took place to bolster the applicant’s spirits).

15. The applicant advised that Ms Gagandeep Kaur started a relationship with another man in India and after some months decided she wanted to return to Australia to be with the applicant and telephoned him. However, he was not prepared to take her back. The applicant believed Ms Kaur returned to Australia at some point but he is not sure of her current whereabouts. They are now getting divorced and he sent the required documentation for that purpose to her in India. The applicant confirmed to the Tribunal that he had not seen Ms Kaur after she left him in May 2017 and he has had no further contact in any way with her other than the one telephone call about eight months after she departed Australia. The applicant confirmed to the Tribunal that he is not presently in a relationship with any person.

16. The applicant advised that after Ms Kaur’s departure, he ran the Desi Spice Village as best he could even though he was not a director or shareholder of the sponsor. The applicant hoped that Ms Kaur would return to the business but she never did. He wanted to continue to run the restaurant and agreed that he did so without any formal authority. The applicant provided inconsistent oral evidence regarding whether Desi Spice Village ceased trading. He initially advised that it did not, then changed tack with his evidence to confirm that it ceased trading for ten to fifteen days after Ms Kaur departed. It was at this time his mother visited him from India. He indicated he was in a bad way, but did not seek any medical treatment. The applicant explained that he then ran the business himself for around twenty days and one staff member left. He didn’t pay himself and one other staff member remained.

17. The applicant told the Tribunal that he asked his friend, Mr Mandeep Baniwal, to help him with the restaurant and he agreed. The applicant spoke to his accountant, Mr Anil Garg (from ‘Take it Easy Accounting’ on the Gold Coast) to assist with contacting Ms Gagandeep Kaur regarding the transfer of authority for G and Jass Pty Ltd. Documents submitted by the applicant indicate that Mr Baniwal replaced Ms Kaur as the sole director of the sponsor in mid-2017. Ms Kaur remained the sole shareholder at that time. According to the applicant, Mr Baniwal managed the front of house and the paperwork for Desi Spice Village then. The applicant advised that he was always paid in cash at Desi Spice Village. He provided inconsistent oral evidence regarding how the other staff were paid, initially indicating Mr Baniwal paid them by bank transfer then conceding he was unsure how they were paid. The applicant also provided inconsistent oral evidence concerning whether he accessed the company bank account set up by Ms Kaur, in due course settling on advising that he did do so using its internet password. He added that he had the permission of Ms Kaur to access this company bank account.

18. Apparently Desi Spice Village at Helidon initially went well financially, however towards the end of 2017 a caravan park in proximity was in the process of being sold. Submitted documentary evidence, such as media articles, confirms the sale of the adjacent property around November 2017. This apparently caused a dramatic drop in trade such that the opening hours of Desi Spice Village were reduced between early 2018 and September 2018. Apparently the applicant only worked during the evening shifts from late 2017 (he contends he worked full time hours during the evening) and around that time he placed an advertisement on the Gumtree website looking for work. This is how Ashleigh from One Call Vacate came into contact with him. The applicant confirmed that in September 2018 the Desi Spice Village was closed at Helidon by Mr Baniwal because there were no more customers.   

19. The applicant confirmed to the Tribunal that he worked in a position for other than the sponsor, or an associated entity of the sponsor, in breach of Condition 8107(3)(a)(ii). He advised that he commenced employment with One Call Vacate in early 2018. The applicant indicated he performed tasks for Ashleigh such a dropping her children at school and driving her around. He stated that he was paid his wages by bank transfer into his personal bank account at that time, an account which has since been closed. The applicant advised that he was employed as an Office Manager but rarely performed that role, rather he performed errands for Ashleigh.

20. The applicant indicated he worked for One Call Vacate until September 2018. He claimed both Ashleigh and her mother threatened him during this time. The applicant confirmed he never went to the Police about these alleged threats. Post-hearing submissions contend the threats were not ‘physical or violent in nature’ rather they related to his ‘immigration status’, hence he did not seek Police assistance. The applicant informed the Tribunal that he commenced his own cleaning business, Classic Klean, in September 2018 and last performed work in that business during April 2019. He stated that his father sent him $5,000 to assist around that time. According to the applicant, he resumed work at the Desi Spice Village when it reopened in Toowoomba on 1 June 2019. When asked by the Tribunal why he did not return to India when Desi Spice Village closed at Helidon, the applicant indicated that he would find it hard to get a job and accommodation in India. He added that he wants to remain in Australia permanently and to work here. The applicant confirmed to the Tribunal that he breached Condition 8107 but did so due to his financial circumstances at the time.

21. The Tribunal discussed with the applicant how the sponsor, G and Jass Pty Ltd, came into existence. He advised that Ms Gagandeep Kaur wanted to open a business and also to get Subclass 457 visas. The applicant stated that to work for her was not a good idea. The applicant specifically confirmed to the Tribunal that he agreed with Ms Kaur to open the business in order to obtain Subclass 457 visas.

22. The applicant explained that the sponsor initially traded as the Golden Punjab Restaurant on the Gold Coast. He apparently worked there on a part time basis, for no more than twenty hours per week, whilst he was the holder of a Student visa and until he obtained his Subclass 457 visa (which was on 21 April 2016). The Tribunal asked the applicant if when G and Jass Pty Ltd applied to be a standard business sponsor and nominated him for the position of Chef, had Ms Kaur advised the Department the company was sponsoring her as a secondary visa applicant on his visa? The applicant indicated that he was involved in making both the standard business sponsorship and nomination applications and the Department was advised he and Ms Kaur were married.

23. The Tribunal raised with the applicant that given Ms Gagandeep Kaur was the sole shareholder and sole director of G and Jass Pty Ltd, and at that time the company sponsored both her and him for Subclass 457 visas with nobody else involved in running the company, this might tend to suggest that the initial standard business sponsorship and nomination were a contrivance designed to secure a migration outcome for both he and Ms Kaur and that his visa should be cancelled. The applicant was invited to comment and replied that they were looking for a business to run and they could not do so on a Student visa. He stated that he discussed with his immigration lawyers (from the same firm as representing him in this review) how to apply for the Subclass 457 visas.

24. The applicant advised the Tribunal that for the initial six to seven months of the Golden Punjab’s operations he and Ms Gagandeep Kaur both held Student visas. The applicant explained that he did not depart Australia when his studies concluded because he loves Australia and wanted more experience as a Chef. He stated that he never worked more than twenty hours per week as a Student visa holder, although Ms Kaur was full time. The applicant confirmed to the Tribunal that Ms Kaur ceased involvement with G and Jass Pty Ltd the day after she left him at Helidon. The Tribunal raised with the applicant that given Ms Kaur departed Australia there was no shareholder or director of G and Jass Pty Ltd remaining in Australia at that time and that might tend to suggest the business was not operating lawfully and that his Subclass 457 visa should be cancelled. The applicant was invited to comment and replied that he was hoping Ms Kaur would return. He didn’t want to business shut down and he tried to keep it running himself as he thought Ms Kaur would come back.

25. The applicant confirmed to the Tribunal that his last physical day of work at the Desi Spice Village in Helidon occurred in September 2018 at the time he established his own cleaning business, Classic Klean. The applicant told the Tribunal, and submitted documentary evidence contending, that he went on unpaid leave from Desi Spice Village on 20 September 2018. The Tribunal raised with the applicant that the delegate’s visa cancellation decision indicates he signed an employment contract with One Call Vacate on 8 March 2018, for full time employment stated to commence on 12 March 2018 in the position of Office Manager, and that he was nominated for that position under the Regional Sponsored Migration Scheme (RSMS) on 15 March 2018. Further, the delegate indicates that this employer lodged documents with a Regional Certifying Body in August and September 2018 in support of their nomination and indicating he was employed by them and used a pest control licence in that employment. The Tribunal raised that this information appears inconsistent with his submitted evidence that he continued to work with Desi Spice Village at Helidon throughout 2018 until he went on unpaid leave on 20 September 2018 and it might tend to suggest his visa should be cancelled, inviting his comment.

1. The applicant responded by advising that when he commenced with One Call Vacate in March 2018 he was not originally performing the job he was hired for. He was sometimes paid and sometimes not. The applicant told the Tribunal he quit One Call Vacate in September 2018 and went on unpaid leave from Desi Spice Village at that time. He then took advice from an immigration lawyer whom he trusted.

2. The applicant agreed that he signed the employment contract with One Call Vacate. He indicated he was working for One Call Vacate at the time he sent his documents for the Subclass 187 (Regional Sponsored Migration Scheme) visa application. The Tribunal raised with the applicant that his submitted documentary evidence contending he simultaneously worked full time at both One Call Vacate and Desi Spice Village at Helidon appeared to be inconsistent, inviting his comment. The applicant replied that he worked more than thirty eight hours per week with One Call Vacate but also worked full time during the evening at Desi Spice Village in Helidon. He added that Ashleigh from One Call Vacate always burdened him with her personal problems, emotionally black mailed him and threatened to call the Department against him. The Tribunal raised with the applicant that it might have some difficulty accepting his truthfulness given the apparent inconsistent in his submitted evidence regarding the simultaneous performance of full time work at both businesses, inviting his comment. The applicant indicated he had no comment to make.

3. The Tribunal raised with the applicant that the delegate’s visa cancellation decision indicates that on 25 September 2018, the owner of One Call Vacate advised the Department that he ceased work for them after almost twelve months of employment and he established his own cleaning business ‘Classic Klean’. The Tribunal raised that this information appeared inconsistent with the applicant’s submitted evidence that he continued to work with Desi Spice Village at Helidon throughout 2018 until he went on unpaid leave on 20 September 2018 and it might tend to suggest his visa should be cancelled. The applicant was invited to comment and maintained that he commenced unpaid leave on 20 September 2018 and remained employed by Desi Spice Village. He stated that he was ‘not really doing full time hours’ with One Call Vacate and that Ashleigh was always abusing him and threatening to call the Department. The applicant apparently dropped her children off and picked up her husband. According to the applicant, Ashleigh owes him and others money.

4. The Tribunal raised with the applicant that he had earlier given oral evidence indicating he worked full time with One Call Vacate and subsequently advised he was ‘not really doing full time hours’ with them which appeared inconsistent, inviting his comment. The applicant informed the Tribunal that Ashleigh didn’t really employ him for the proper job and she had used him. The Tribunal further discussed with the applicant the appearance of inconsistency in his evidence and he advised that Ashleigh was not paying him nor employing him properly.

5. The Tribunal advised that the information it had raised with the applicant regarding his nomination for the Regional Sponsored Migration Scheme by One Call Vacate, his employment with that company and his establishment of the business Classic Klean, might tend to suggest that he and Mr Mandeep Baniwal have provided false and misleading information to the Department and the Tribunal regarding his continued employment by G and Jass Pty Ltd throughout 2018 and that his visa should be cancelled. The applicant was invited to comment and replied that he had ‘never quit Desi Spice Village until September 2018’ and there were customers still there.

6. The Tribunal discussed with the applicant the material he submitted to the Department in response to the NOICC, and that submitted in this review, suggesting that Ashleigh from One Call Vacate mistreated him and made him perform errands for her. He maintained that Ashleigh threatened him if he did not do things for her, he did things for her in his spare time to help her, she used him with the employment contract and she threatened legal action against him.

7. The Tribunal discussed with the applicant the reopening of Desi Spice Village at Toowoomba. He stated that he returned to work with Desi Spice Village on 1 June 2019. The reopening of the restaurant took a long time as Mr Mandeep Baniwal became ill with an infected pancreas. The applicant visited Mr Baniwal in hospital almost every day after his admission on 1 March 2019. The applicant advised that Mr Baniwal was in Toowoomba Base Hospital for sixteen to eighteen days and was unconscious. Following this time, according to the applicant, Mr Baniwal went to the Hospital Ward for around fifteen days, having surgery and a drain inserted. Mr Baniwal went home for a few days then took ill again and returned to the Intensive Care Unit at Toowoomba Base Hospital. He was subsequently conveyed from Toowoomba by helicopter to the Princess Alexandra Hospital in Brisbane.

8. The Tribunal asked the applicant when after Mr Mandeep Baniwal went into hospital on 1 March 2019 did he next perform duties for G and Jass Pty Ltd? The applicant advised that Mr Baniwal’s wife, Mrs Kelly Baniwal, helped him organise paper work for the new business, although she is not a shareholder or director. The applicant advised that in April 2019 Mr Baniwal signed the lease for the new Desi Spice Village premises at Toowoomba. Mr Baniwal’s father apparently took the lease in to hospital for it to be signed. The applicant confirmed that Mr Mandeep Baniwal was taking medication at that time. The applicant also confirmed that the draft of the lease was viewed whilst Mr Mandeep Baniwal was in hospital.

9. When asked by the Tribunal how G and Jass Pty Ltd paid a bond of $7,423.37 to Colliers International on 8 March 2019 as reflected in the submitted Trust invoice, when Mr Baniwal was unconscious and critically ill in the hospital at that time, the applicant indicated that he thinks Mr Baniwal’s wife made the payment. He added that he also made some payments related to the shop. When asked by the Tribunal how Mr Baniwal’s wife made the payment when not involved in G and Jass Pty Ltd, the applicant indicated he was not sure.

10. The Tribunal asked the applicant how Ms Gagandeep Kaur came to relinquish her shareholding in G and Jass Pty Ltd on 10 June 2019 and Mr Baniwal acquired it, as noted in written submissions? The applicant told the Tribunal that the accountant got Ms Kaur to sign the papers using email. The applicant agreed that Mr Baniwal became the sole shareholder of the sponsor on 10 June 2019.

11. The Tribunal canvassed the applicant’s present circumstances during the review hearing. He advised that he works full time at Desi Spice Village in Toowoomba, people love his food and he wants to be a Chef. The applicant indicated the business trades from 5pm to 9pm, with him performing preparation work earlier. Apparently the business is getting busy.

12. The Tribunal asked the applicant if he advised the Department of his separation from Ms Gagandeep Kaur. He stated that he did so in early 2018 by sending notification through his representative. The Tribunal referred the applicant to Departmental documents he submitted (at folio 45 of the Tribunal file) indicating the relationship breakdown was notified to the Department on 21 March 2019 which appeared inconsistent with his earlier evidence and a long time after the actual separation. The applicant replied that he ‘didn’t properly think’ what he was doing, he was in a bad situation and he is still dealing with issues. He added that he has been seeing a Doctor in Toowoomba for the last few weeks.

13. The Tribunal raised with the applicant that the delay in notifying the Department of his relationship breakdown might tend to suggest he did not meet the obligations of his visa, inviting his comment. The applicant stated that he didn’t know. The Tribunal raised with the applicant that it might have difficulty accepting the aforementioned evidence given he has been in Australia for a long time with many visas, inviting his comment. The applicant replied that he thought Ms Kaur would come back. The applicant also advised he has not breached any visa conditions other than Condition 8107.

14. The Tribunal raised with the applicant that he appeared to have gained skills and experience in the Australian work force which would make him more marketable in the Indian job market, inviting his comment. He replied that in India there is not much scope for hospitality employment. He would apparently have to move to a big city where it is expensive to live and he cannot afford this. The applicant added that it is hard to get a job in India. The Tribunal raised with the applicant that he has remained in Australia on a series of temporary visas which should not create the expectation of further stay in Australia, inviting his comment. The applicant replied that he wants to be sponsored for permanent residence.

15. When asked by the Tribunal if he has a compelling need to remain in Australia, the applicant advised that he wants to support his family who are middle class. He also has loans to pay back including a car loan and borrowings from friends for expenses. When asked by the Tribunal if he or anyone else would face hardship if his visa is cancelled, the applicant indicated that his family will face hardship because he sends money to them on a monthly basis and wages are low in India.

16. The Tribunal raised with the applicant that if his visa is cancelled, and he does not hold a valid visa, he would be an unlawful non-citizen and subject to immigration detention, it would be difficult for him to make visa applications in Australia and he would be liable to removal from Australia, inviting his comment. The applicant advised that he knows this will happen if his visa is cancelled.

17. The Tribunal raised with the applicant that if his visa is cancelled, the secondary visa holder (Ms Gagandeep Kaur) will have her visa cancelled by operation of s.140 of the Act, inviting his comment. The applicant had no comment to make. When asked by the Tribunal if there were any international obligations concerning his case, the applicant replied that there were not. When asked by the Tribunal if there is any reason he cannot return to India, he replied that he has been in Australia for eleven years and got sick when he visited India. He added that he will financially suffer if he returns.

18. The Tribunal invited the applicant to give evidence on any other matters that he wished to raise in relation to his Subclass 457 visa cancellation. The applicant indicated that his visa condition only allows work with a nominated employer, yet it sometimes takes six to eight months for new nominations to be approved which makes it hard to survive financially. The Tribunal raised with the applicant that it must apply the law and temporary visa holders may depart Australia if their circumstances change, inviting his comment. He replied that he knows this.

19. Prior to the Tribunal taking evidence by telephone from Mr Mandeep Baniwal, it raised with the applicant that it was developing concerns with his credibility due to the inconsistency at times in his oral evidence. He replied that he was nervous. The Tribunal also raised with the applicant that it was concerned that the establishment of G and Jass Pty Ltd might have been a contrivance for migration purposes, inviting his comment. The applicant indicated he had no comment to make. Further, the Tribunal indicated that the aforementioned matter might tend to suggest that his visa should be cancelled, inviting his comment. The applicant indicated he had no comment to make.

20. The Tribunal took oral evidence by telephone from Mr Mandeep Baniwal, who took a break from driving his truck to do so. The Tribunal is satisfied that Mr Baniwal had advance notice of the review hearing and was provided with a fair opportunity to provide his evidence. Mr Baniwal’s evidence may be summarised as follows. Mr Baniwal is an Australian permanent resident through a Partner visa sponsored by his wife, Mrs Kelly Baniwal. She is not a shareholder or director of G and Jass Pty Ltd, although she sometimes helps him if he is busy. Mr Baniwal met the applicant around 2013 and they are friends.

21. When asked by the Tribunal when he first became involved in G and Jass Pty Ltd, Mr Baniwal indicated it was around 2017. He stated that he wanted to run his own business and came to know it was for sale. He told the Tribunal that he purchased the business after seeing an advertisement in the newspaper. Mr Baniwal could not recall from whom he purchased the business. He clarified that the applicant recommended the business to him, then he saw the advertisement in the newspaper, then he purchased it in 2017 for $25,000. Mr Baniwal said it was a café at Helidon spa in front of a caravan park. Mr Baniwal told the Tribunal that at that time only the applicant was working there, nobody else.

22. When asked by the Tribunal to describe the operations of G and Jass Pty Ltd after he became a director, Mr Baniwal outlined that the applicant is the ‘main guy’ whilst he went into the business ‘now and then’. Mr Baniwal indicated he has full trust in the applicant. He told the Tribunal that he pays the staff wages weekly although at one time around July 2017 he could not afford to pay them. Mr Baniwal was not sure if the applicant’s wife was working there, adding that she had helped him. Mr Baniwal stated that since he has owned the business the applicant’s wife ‘worked there sometimes.’ Mr Baniwal delegated ‘full command’ of the restaurant to the applicant.  

23. Mr Baniwal advised that he signed a document and gave it to the accountant to become the director of the sponsor. Apparently the business was not good after the caravan park closed and it went down the drain. At that time Mr Baniwal told the applicant he was sorry he couldn’t afford him. Mr Baniwal looked for a new business in Toowoomba and found a position in Middle Range. He stated that the business is good and he is not involved in it day to day, rather he visits weekly to check on it. Apparently Mr Baniwal used to help in the business more regularly, but his main job is as a truck driver presently.

24. The Tribunal asked Mr Baniwal where, to his knowledge, the applicant had been employed since he became the director of G and Jass Pty Ltd. Mr Baniwal outlined that when he could no longer afford him the applicant ran a cleaning business. Mr Baniwal advised that when he stopped paying the applicant’s wages ‘he just left’ and for a while he had no contact with him, for about four to six months. Mr Baniwal told the Tribunal that the applicant’s employment ceased at that time ‘from his point of view’. Mr Baniwal informed the Tribunal that he wanted to open a new restaurant and asked the applicant to come back as it was hard to find a Chef in Toowoomba.

25. Mr Baniwal advised that the applicant worked in his own cleaning business in 2018 and never did cleaning work when he worked for him at G and Jass Pty Ltd. Mr Baniwal could not remember the applicant’s last day of physical employment at Helidon for G and Jass Pty Ltd but advised the restaurant ceased about September 2018. When asked by the Tribunal why it took so long to reopen the business after it closed in Helidon, Mr Baniwal advised that he looked at a lot of spots and rents were high. He wanted to open a new restaurant offering Indian street food in Toowoomba as he had studied hospitality himself in Australia.  

26. The Tribunal discussed with Mr Baniwal his illness. He advised he had pancreatitis. He went to hospital on 1 March 2019 and was in the Intensive Care Unit for around two weeks, being on a ventilator and experiencing delirium. At the end of March 2019 he ‘started to be able to talk’ and started to walk with the assistance of physiotherapy. He fully recovered in June 2019. Mr Baniwal was too sick to do any work for a while during his illness. He stayed in touch with the applicant regularly. In April 2019 he found a place to open by talking with the applicant. Whilst ill he was taking very heavy medication and was hallucinating. He started to ‘think clearly’ about May 2019. Mr Baniwal indicated no papers were signed by him prior to April 2019 and the lease for the new restaurant premises was signed on 24 April 2019. The Tribunal discussed with Mr Baniwal the submitted medical certificate dated 11 March 2019 from Toowoomba Hospital and he agreed it was accurate.  

27. The Tribunal referred Mr Baniwal to two submitted Business Activity Statements for the periods 1 April 2018 to 30 June 2018 and 1 July 2018 to 30 September 2018 signed by him on 23 March 2019 asking if he recalled signing them whilst in hospital. Mr Baniwal initially indicated he didn’t remember signing these documents and he can’t recall well because he was sick. He then indicated he did sign them but he can’t recall why they were signed so late. Ultimately Mr Baniwal advised that he did sign documents which the applicant presented to him but he doesn’t remember them now.  

28. Mr Baniwal also advised that the business has operated a NAB bank account since opening in Toowoomba and he has the bank records. The bank account for the business when it was at Helidon has been closed. The Tribunal raised with Mr Baniwal that it might be concerned that he was able to sign the documents purportedly signed by him in hospital, inviting his comment. Mr Baniwal replied that he trusted the applicant. The Tribunal advised Mr Baniwal that it was developing concerns with portions of his evidence given he advised he was very ill, said he didn’t do any work in the company until April 2019, said he signed the lease in April 2019 and recently indicated he also signed the Business Activity Statements in March 2019, inviting his comment. Mr Baniwal stated that he ‘did sign some documents on the bed when he was very sick’. He does remember signing the documents but he was sick as well.

29. When asked by the Tribunal the method by which the applicant has been paid his wages by the business, Mr Baniwal advised it has always been by bank transfer at both Helidon and Toowoomba. When asked by the Tribunal if he became involved in the business because the applicant is his friend, Mr Baniwal advised that he is his friend but the applicant is a good Chef with lots of experience. When asked by the Tribunal how he became a shareholder of G and Jass Pty Ltd, Mr Baniwal could not remember how he became the sole shareholder. He said he goes to the restaurant every day after his work and on the weekends. Mr Baniwal stated that he ‘can’t give the reason about how I became a shareholder.’ Mr Baniwal confirmed he had no further evidence to provide and the applicant had no comment to make following this evidence. The Tribunal notes that much of Mr Baniwal’s oral evidence was provided in an extremely vague and unconvincing fashion. It also contained significant inconsistencies. Whilst the Tribunal accepts that Mr Baniwal gave his oral evidence whilst pulled over after driving his truck, it does not accept that this matter accounts for the vagary and inconsistency which permeated such evidence, particularly when in response to the most basic of questions he gave answers tending to obfuscate. On balance, the Tribunal forms the view that Mr Baniwal does not have a detailed knowledge of the operations of G and Jass Pty Ltd trading as Desi Spice Village.

30. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    a.At the review hearing the witness, Mr Mandeep Baniwal, gave oral evidence that he purchased the business for around $25,000 after seeing an advertisement, which is inconsistent with the applicant’s oral evidence concerning how Mr Baniwal first came to be involved in the business;

    b.Mr Baniwal indicated that at the time he took over the business the applicant’s wife was still involved, which is inconsistent with the applicant’s oral evidence;

    c.Mr Baniwal indicated he had been very ill and described his illness, including that he was suffering in his thought process, and outlined that he signed lease documentation in April 2019 and also documents the applicant put before him in March 2019 while he was ill; and

    d.Mr Baniwal displayed an extremely vague knowledge of the business, including not being able to explain how he became a shareholder.

1. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he provided inconsistent information to Mr Baniwal, it also tends to suggest that the business is a contrivance designed to secure a migration outcome for him, and these matters tend to suggest that discretion should be exercised to cancel his visa. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the Subclass 457 visa cancellation decision in accordance with s.116 of the Act. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested a short adjournment which was duly granted. Following the adjournment, the applicant requested additional time to provide a response, contending that as Mr Baniwal had pulled over his truck to give his evidence he might not have been able to answer questions properly. The Tribunal permitted the applicant to provide a written response following the review hearing.

2. The applicant concluded his oral evidence by indicating he wants to be a Chef not a cleaner, he is working hard in Desi Spice Village and people love his Indian street food on the menu he created, the restaurant is the only one in Toowoomba with Indian street food, and it would be hard to find another Chef to replace him there. The applicant doesn’t want his visa cancelled forcing him to return to India because he says that would financially and emotionally break him down.

3. The applicant’s representative was invited to make oral submissions during the review hearing, however chose not to do so. The Tribunal indicated to the applicant that it had some concerns with his application for review including that the evidence might tend to suggest the business was established as a contrivance to secure a migration outcome in a self-sponsorship fashion (noting he gave oral evidence that the establishment of the sponsor was, in part, to secure Subclass 457 visas for him and Ms Gagandeep Kaur), there appeared to be no director operating the business after Ms Kaur departed Australia therefore causing concern as to whether it was operating lawfully (noting that it closed for ten to fifteen days, then the applicant ran it himself for around twenty days on his own evidence), Mr Mandeep Baniwal’s motivation for assisting in the business might be because he is a friend and may be suggestive of a contrivance designed to secure a migration outcome, there appeared to be inconsistent evidence regarding the applicant working full time at both Desi Spice Village in Helidon and One Call Vacate (including there being documentation suggesting he applied for the Regional Sponsored Migration Scheme on the basis of being a full time employee at the same time he says he was working full time at Desi Spice Village in Helidon), Mr Baniwal appears to have been very ill at the time certain business decisions were apparently made (including being unconscious for a period, not being able to communicate effectively for a time and taking medication which might have impeded his ability to understand documents in the period where those such as draft Business Activity Statements were purportedly signed), the delay in notification of the cessation of the relationship between the applicant and Ms Kaur given her initial role in the business, and the totality of the evidence might tend to suggest that G and Jass Pty Ltd is a vehicle being utilised to secure a migration outcome for the applicant.

4. The applicant was invited to comment upon the above concerns and he replied that when the business was opened self-sponsorship was legally allowed. He added that there is a skill shortage pertaining to Chefs, an Indian girl worked with him at Helidon and Mr Mandeep Baniwal paid cash to the owner of the caravan park to purchase the restaurant. The Tribunal discussed with the applicant that it was concerned with inconsistencies in the submitted evidence and will consider carefully his post-hearing response to the s.359AA information. The Tribunal also outlined that whilst self-sponsorship is legally permissible, the motivation for establishing the business and the facts surrounding its operation are relevant to whether it is a bona fide business or being used to secure a migration outcome. The applicant confirmed he had no further evidence to provide at the review hearing prior to its conclusion. The Tribunal notes that it had the benefit of taking the applicant’s oral evidence in person at the review hearing and it observed him to provide significant portions of his evidence in an inconsistent and evasive fashion, even accepting he was nervous. The Tribunal also notes that whilst it took the oral evidence of Mr Baniwal by telephone, it is clear this evidence was permeated with such significant vagary that it diminished his credibility as a witness. Accordingly, the Tribunal developed serious concerns with the credibility of both the applicant and Mr Baniwal on account of the fashion in which they respectively delivered their oral evidence. For completeness, the Tribunal notes that it has carefully reviewed the submitted documentary evidence, including third party statements, in support of the applicant which contend he is of good character and pursuing his employment in a bona fide fashion. However, the Tribunal affords low weight to such evidence given the reasons outlined for the Tribunal coming to the conclusion that the applicant lacks credibility.

5. Following the review hearing, on 30 August 2019, the Tribunal received written submissions, a joint reference from Ms Sky Walker and Mr Andrew Webb, further text message exchanges, and medical information pertaining to the applicant. With respect to the information raised with the applicant pursuant to s.359AA of the Act, it is contended that Mr Mandeep Baniwal spoke to the applicant regarding the sale of the business prior to seeing the advertisement for its sale. Further, it was contended Mr Baniwal made a mistake in advising Ms Gagandeep Kaur was working in the restaurant when he owned the business and she has not worked in the restaurant since her departure from Australia (which the Tribunal is prepared to accept). Additionally, it is contended that Mr Baniwal maintains he had capacity to sign documentation and make business decisions as he was not in the ICU at the relevant times. Apparently Mr Baniwal is intending to provide a letter from his treating Doctor regarding this matter, but at the time of this decision (several weeks following the review hearing) no such evidence has been provided and the Tribunal does not consider it appropriate to continue to delay its decision pending the possible submission of such documentation, in an unspecified time frame, given the chronology of this review. The Tribunal notes that it has carefully considered the applicant’s response to the s.359AA information in its decision making process.

6. The applicant also contended in post hearing submissions that Mr Mandeep Baniwal is a truck driver in addition to being the director of G and Jass Pty Ltd and would therefore not participate in ‘day to day management of the restaurant’, however he performs an oversight role including with respect to the financial, employment and payroll aspects of the business and he visits it weekly. It is also contended that the company G and Jass Pty Ltd was not created by Ms Gagandeep Kaur in order to contrive a migration outcome, rather it was established to provide family income and to ‘further assist in filling a skilled labour shortage within the hospitality industry.’ It was also contended that the business has employed Australian citizens and permanent residents in the hospitality industry. Additionally it is contended that ‘the creation of the company would further benefit the Australian economy through tax payments.’   

7. According to the written submission received on 30 August 2019, the business apparently submitted evidence with its initial nomination application indicating it could not find a suitable skilled local candidate and due to the skill shortage of Chefs the Department accepted that the employment of the applicant filled such a shortage within the hospitality industry. It is contended that Ms Gagandeep Kaur’s initial establishment of the business should not weigh negatively in this review.

8. It is also contended that Mr Mandeep Baniwal, although a friend of the applicant’s, purchased G and Jass Pty Ltd to provide additional financial support to him and his wife. The applicant spoke to Mr Baniwal about the sale of the business and then he saw it advertised and purchased it. Having done so, he continued to employ the applicant as a Chef. The business now currently trades in Toowoomba and apparently Mr Baniwal will suffer hardship if the applicant cannot continue his employment. It is contended that the applicant is continuing his employment in the nominated occupation in a regional area.

9. The post-hearing written submissions clarify that the purported threats from Ashleigh of One Call Vacate to the applicant were not physical or violent in nature and related to his immigration status, hence the applicant did not seek police involvement. It is contended that the applicant initially advised in his oral evidence that he worked for both Desi Spice Village at Helidon and One Call Vacate during the period March 2018 to September 2018. The applicant maintains that he worked full time at Desi Spice Village Helidon performing preparation and then evening shifts. However, with respect to One Call Vacate, it is contended that he worked during the day ‘more in-line with shift-work as the employer would send Jaspreet on tasks an errands for personal reasons, and for cleaning various establishments/residences of client of One Call Vacate. Jaspreet was never provided tasks or duties by One Call Vacate as an Office Manager as agreed in the contract for a Subclass 187 visa.’   

10. It is contended that Desi Spice Village Helidon was trading during March 2018 to September 2018 and an unsigned text message ‘statement of support’ from Ms Sky Walker and Mr Andrew Webb is submitted, along with text message exchanges between the applicant and Ashleigh of One Call Vacate. The applicant also contends that although he did not seek medical assistance after the break down of his relationship with Ms Gagandeep Kaur, his mother came from India to assist him. It is contended the applicant has now sought medical assistance and is on a waiting list to see a psychologist, however he has been prescribed Fluoxetine tablets. The Tribunal notes that the applicant submitted tax invoices for visits to a General Practitioner on 6 and 23 August 2019, along with a prescription for medication dated 23 August 2019 (issued two days after the conduct of the review hearing).   

11. It is further contended in the post-hearing submission that there is a skill shortage in the hospitality industry being filled by the applicant (noting the external references to such shortage) who is working now in compliance with Condition 8107. If his visa is cancelled it is contended that the business may need to consider closing down again as it will be difficult to find another Chef, employees (some of which are Australian citizens) would lose their employment and financial hardship will be caused to Mr Baniwal.

12. On 17 September 2019, the Tribunal wrote to the applicant requesting him to provide a copy of the ATO Integrated Client Account View Activity Statement for G and Jass Pty Ltd from the date of first GST registration. On 26 September 2019, the applicant submitted the aforementioned ATO statement for the period 14 January 2017 to 23 September 2019. The submitted ATO record indicates that on 23 September 2017 (with effect 14 January 2017) general interest was levied in the amount of $31.86, with G and Jass Pty Ltd then having a debt to the ATO of $10,122.86. Various transactions are recorded with respect to the levying of interest and remission of interest until on 23 February 2018 (with effect 21 February 2018) the debt of $10,193.61 owed by G and Jass Pty Ltd is noted as a ‘Non-pursuit amount’ and the balance is returned to $0.

13. On 23 March 2019, the ATO record indicates that several self-assessed amounts for GST and PAYG tax withheld were submitted with respect to periods in 2018. After 23 May 2019, the ATO record indicates that the only further transactions recorded are with respect to the levying of interest charges on debts owed to them. From the non-pursuit of taxation debt on 21 February 2018, the debt owed by G and Jass Pty Ltd has risen to $15,449.50 as at 31 August 2019. The Tribunal accepts that the information with respect to the self-assessed amounts for GST and PAYG tax withheld contained in the two submitted ‘draft’ BAS for the periods 1 April 2018 to 30 June 2018 and 1 July 2018 to 30 September 2018 was submitted to the ATO as noted in their record dated 23 September 2019. However, it is worth pausing to reflect that no actual payments have been made by G and Jass Pty Ltd with respect to either GST or PAYG tax withheld during the entire period of the submitted ATO record and the company owes the amount of $15,449.50 in unpaid taxation.

14. Following careful consideration of the evidence, the Tribunal finds that the applicant undertook employment with One Call Vacate between March and September 2018. Additionally, he engaged in self-employment in his company Classic Klean Pty Ltd between September 2018 and April 2019. Neither of the aforementioned businesses sponsored the applicant for the Subclass 457 visa, nor are they an associated entity of G and Jass Pty Ltd. Accordingly, the Tribunal finds that the applicant failed to comply with Condition 8107(3)(a)(ii) attached to his Subclass 457 visa. For completeness, the Tribunal notes that the circumstances outlined in Condition 8107(3A) do not apply to the present review.  

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

17. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

18. The applicant’s background has been detailed above. He arrived in Australia in December 2007 holding a Student visa, then held a selection of other temporary visas prior to the grant of his temporary Subclass 457 visa on 21 April 2016. This visa would expire on 21 April 2020 but for its cancellation. The Tribunal considers that the purpose of the applicant’s stay in Australia holding a Subclass 457 visa is to work for a bona fide standard business sponsor in an approved nominated occupation. The Tribunal is not satisfied that the applicant has been employed in a bona fide sponsoring entity for the following reasons.

19. It is apparent that the sponsor, G and Jass Pty Ltd, was established at a time when Ms Gagandeep Kaur was married to the applicant. She was also the sole shareholder and sole director, in addition to being a secondary Subclass 457 visa applicant. Whilst the Tribunal accepts that as a matter of law ‘self-sponsorship’ is permissible in the context of the Subclass 457 visa scheme, and the Department granted the visas, the bona fides of such an arrangement are to be determined by due consideration of the totality of the evidence. Further, the Tribunal is of the view that the genesis of the applicant’s Subclass 457 visa grant sheds valuable light on the other evidence before it regarding whether that visa should be cancelled.

20. The Tribunal notes that on the applicant’s own oral evidence the sponsoring company relocated its operations from the Gold Coast to the regional area of Helidon in early 2017, at a time prior to Mr Mandeep Baniwal’s involvement in the business. After a few months of trading at Helidon as the Desi Spice Village, in May 2017 Ms Kaur departed Australia under unfortunate circumstances, leaving the sponsoring business and her relationship with the applicant. Whilst the Tribunal accepts that at that time the applicant hoped for Ms Kaur to return to the business (and his mother came to Australia to aid him as he was feeling poorly), he nevertheless operated that business himself for a time without formal authority to do so given he was neither its shareholder nor its director. Indeed, the continued operation of G and Jass Pty Ltd at that time, in the absence of a director or shareholder resident in Australia, calls into question the lawfulness of its operation. In the view of the Tribunal, the aforementioned situation is inconsistent with the purpose of the Subclass 457 visa scheme which, in the relevant standard business sponsorship context, is for lawfully operating Australian businesses to fill legitimate skill gaps in their workforce on a bona fide basis.

21. The Tribunal notes that in the applicant’s initial oral evidence he explained he asked his friend Mr Mandeep Baniwal to help him with the restaurant and he agreed to do so. Thereafter, the company accountant (Mr Anil Garg) made direct contact with Ms Gagandeep Kaur in India to facilitate the installation of Mr Baniwal as the sole director of the sponsoring company in mid-2017. On balance, the Tribunal prefers the initial spontaneous oral evidence of the applicant, which indicates Mr Baniwal became the director of G and Jass Pty Ltd to help the applicant as his friend, to the ex-post facto attempt in later evidence and submissions to portray Mr Baniwal as making an informed business decision to buy into the sponsoring company upon recommendation of the applicant, in order to enhance his family financial position and pursue his dreams of running a business focused on Indian street cuisine. The Tribunal does so due to the inconsistent and evasive fashion in which the applicant delivered much of his oral evidence and the extreme vagary displayed by Mr Baniwal with respect to the operations of the sponsoring business.

22. The Tribunal accepts that G and Jass Pty Ltd traded in Helidon from early 2017 until September 2018 when its doors closed. However, the Tribunal does not accept that Mr Baniwal has played an active role in the business since mid-2017 given the vagary of his oral evidence regarding its commercial operations and its inconsistency with the applicant’s oral evidence concerning his involvement. On balance, the Tribunal finds that Mr Baniwal performs a very limited role in the sponsoring business and it is the applicant who effectively runs the company in order to attempt to achieve a migration outcome. This conclusion is buttressed by the lack of satisfaction that the Tribunal has attained regarding the purported full time employment of the applicant at Desi Spice Village Helidon throughout 2017 and until September 2018 for the reasons below.

1. The Tribunal is prepared to accept that Desi Spice Village traded in some capacity at Helidon from early 2017 until September 2018, when it ceased operations due to a loss of custom arising from the sale of the proximate caravan park. The Tribunal accepts this having regard to the submitted documentary evidence, including statements and text message exchanges of third parties (for example from Ms Walker, Mr Webb and Ashleigh of One Call Vacate), which indicate the restaurant was still serving customers during that period. However, the Tribunal does not accept that the applicant was employed on a bona fide full time basis in G and Jass Pty Ltd at Helidon from early 2017 to September 2018 after careful consideration of the evidence. For instance, the submitted ATO Integrated Client Account View Activity Statement for G and Jass Pty Ltd (which was requested for the entire period of GST registration) displays a paucity of transactions that are consistent with the applicant being in such full time employment during this entire period (that is, both pre and post Mr Mandeep Baniwal becoming a director). For example, there are only limited PAYG withholding amounts declared, which were submitted late on 23 March 2019, covering the period January to September 2018. It is worth pausing to reflect that these declarations were apparently made by Mr Baniwal on 23 March 2019, utilising draft BAS documentation, whilst he was hospitalised with a serious illness and also after the Department had made contact with the applicant’s representatives seeking information concerning his employment status (as depicted in Departmental documents submitted by the applicant at folios 44 to 46 of the Tribunal file). Additionally, the Tribunal notes that no actual payments of PAYG withholding tax or GST are reflected in the submitted ATO Integrated Client Account View Activity Statement for the period 2017 until 31 August 2019. For the sake of completeness, the Tribunal notes that such non-payment is at odds with contentions advanced on behalf of the applicant that ‘the creation of the company would further benefit the Australian economy through tax payments.’

2. Whilst the Tribunal is prepared to accept for the purposes of this review that Mr Mandeep Baniwal had capacity to sign the relevant business related documentation which has been canvassed, including the draft BAS documentation on 23 March 2019 (despite concerns arising from Mr Baniwal’s own oral evidence as to his state of health at the time and also the submitted medical certificate at folio 103 of the Tribunal file indicating as at 11 March 2019 he was sedated in the intensive care unit and ‘on mechanical ventilation for a very severe illness’), it forms the view that he was acting at the behest of the applicant in order to assist him to attempt to achieve a migration outcome. The lack of payment of taxation by G and Jass Pty Ltd since 2017, in combination with the previously highlighted credibility concerns, points to the applicant causing returns to be made to the ATO in a disingenuous effort to demonstrate that he was working full time in his nominated occupation at Helidon from early 2017 to September 2018.

3. Further, the Tribunal is not satisfied that the applicant was working full time at Desi Spice Village Helidon between March and September 2018 at the same time he was working full time for Ashleigh in the role of Office Manager at One Call Vacate. This is because on the one hand the applicant sought a permanent visa under the Regional Sponsored Migration Scheme on the basis of full time employment as an Office Manager, which is evidenced by documentation such as the employment contract he signed (as referred to in the delegate’s visa cancellation decision), yet on the other he contends in this review that his employment with One Call Vacate was not as it appeared. Given the previously outlined credibility concerns with the applicant’s evidence, the Tribunal forms the view that he is attempting to distance himself from his employment with One Call Vacate in an effort to bolster his claims that he has always been employed full time by G and Jass Pty Ltd. Whilst the Tribunal notes the applicant’s claims that Ashleigh from One Call Vacate asked him to perform errands for her and did not employ him as an Office Manager, it is apparent that the applicant maintained to the Department that he was duly employed as a full time Office Manager by attempting to obtain a permanent visa under the Regional Sponsored Migration Scheme. This is inconsistent with his claims that he was also employed full time by G and Jass Pty Ltd during the same period and it further undermines his credibility. For completeness, the Tribunal notes that there is no persuasive evidence before it of any complaint made by the applicant to an appropriate authority regarding the alleged mistreatment of him by Ashleigh or her mother, or regarding the purported non-payment of wages to him. On balance, the Tribunal finds that the applicant worked full time for One Call Vacate between March and September 2018 and during that period he also worked on a part time basis in the evenings for G and Jass Pty Ltd trading as Desi Spice Village. The aforementioned matters, in the view of the Tribunal, are inconsistent with the purpose of the Subclass 457 visa scheme.

4. Given the credibility concerns developed by the Tribunal regarding the applicant and Mr Baniwal, it does not accept that the former was placed on unpaid leave following the closure of Desi Spice Village at Helidon. Rather, the Tribunal forms the view that this contention has been concocted in an attempt to bestow continuity and legitimacy upon the applicant’s employment with the sponsoring entity, G and Jass Pty Ltd. Further, the applicant’s commencement of his cleaning business, Classic Klean Pty Ltd, is an activity inconsistent with the purpose of the Subclass 457 visa scheme. Given the timing of the Department’s enquiries into the applicant’s activities from February 2019, arising from the complaint made by Ashleigh that he had established a rival business to hers (as reflected in the delegate’s visa cancellation decision and in the Departmental documents submitted by the applicant at folios 44 to 46 of the Tribunal file), the Tribunal is of the view that he only ceased his own cleaning business due to the scrutiny placed upon him by the Department. Accordingly, the Tribunal does not accept that the applicant pursued operations with Classic Klean Pty Ltd to subsist whilst on a period of unpaid leave from the sponsor, given the aforementioned chronology of its commercial activities in combination with the serious credibility concerns regarding the applicant. On balance, the Tribunal finds that the applicant was not on a period of unpaid leave between the time Desi Spice Village at Helidon ceased trading in September 2018 and the commencement of its trading at Toowoomba in June 2019. Rather, the Tribunal finds that Desi Spice Village ceased operations in September 2018 as confirmed by Mr Baniwal and the applicant sought to resuscitate the commercial activity of the G and Jass Pty Ltd once placed upon notice that the Department was enquiring into his employment status.

5. Whilst the Tribunal accepts that Desi Spice Village at Toowoomba has been trading as an Indian street food restaurant since 1 June 2019, and some limited employment of Australian citizens and permanent residents takes place, it is not satisfied that the purpose of the applicant’s stay in Australia remains extant. That is because, in light of the matters outlined above, the Tribunal finds G and Jass Pty Ltd is a vehicle primarily being utilised to attempt to secure a migration outcome for the applicant. Having regard to the totality of the evidence before it, the Tribunal considers that the present and previous employment of Australian citizens and permanent residents has been of a small scale and peripheral to the primary focus of the business which is to pursue the migration goals of the applicant. Given the aforementioned, whilst the Tribunal accepts there is a skill shortage in the hospitality industry and that the sponsoring company may cease operations if the applicant’s visa is cancelled, it is not satisfied these matters lend legitimacy to the purpose of the applicant’s stay in Australia.

6. Additionally, the Tribunal is satisfied that whilst Mr Mandeep Baniwal is formally the sole director and sole shareholder of the company, he is acting under the dictation of the applicant and is not involved in any meaningful way in its operations (either front or back of house). On balance, the Tribunal is satisfied that G and Jass Pty Ltd is effectively being run by the applicant for the purpose of attempting to secure a migration outcome for him, inconsistently with the purpose of the Subclass 457 visa scheme. Therefore, the applicant is not working in a bona fide fashion for a standard business sponsor in an approved nominated occupation.

7. Following careful consideration, the Tribunal considers that the purpose of the applicant’s travel to and stay in Australia is no longer extant given the matters outlined above. Accordingly, the Tribunal finds that this factor weighs strongly in favour of cancelling the applicant’s visa.

8. As previously outlined, the Tribunal has found that the applicant breached Condition 8107(3)(a)(ii) of his Subclass 457 visa as he undertook employment with One Call Vacate between March and September 2018 and engaged in self-employment with Classic Klean Pty Ltd between September 2018 and April 2019. Following careful consideration, the Tribunal finds that the extent of the applicant’s compliance with visa conditions weighs strongly in favour of cancelling his visa, given the centrality of compliance with Condition 8107 to the purpose of the grant of the Subclass 457 visa and his sustained breach of it.

9. The Tribunal has also had regard to the circumstances of the visa cancellation. The applicant contends that he is the innocent victim of extremely poor fortune arising from matters such as, inter alia, his relationship breakdown, the closure of the proximate caravan park at Helidon which diminished trade, the purported exploitation from Ashleigh of One Call Vacate, his need to subsist through self-employment and the untimely serious illness that befell Mr Mandeep Baniwal. Whilst the Tribunal is prepared to accept that the applicant’s relationship broke down in difficult circumstances, the caravan park closed and Mr Baniwal fell ill, it is not prepared to accept that the circumstances of the visa cancellation arose for reasons outside of the applicant’s control. Rather, the Tribunal finds that the applicant has been employed by G and Jass Pty Ltd from its inception with the primary purpose of securing a migration outcome for himself (and initially also for Ms Gagandeep Kaur). In the view of the Tribunal, the applicant has always effectively controlled G and Jass Pty Ltd without formal authority to do so and since Mr Baniwal’s involvement he has acted under the applicant’s dictation in an attempt to secure a migration outcome for him. On balance, the Tribunal finds that the circumstances of the visa cancellation arose because the applicant ceased full time employment with G and Jass Pty Ltd in order to pursue full time employment with One Call Vacate in an effort to obtain a permanent visa through the Regional Sponsored Migration Scheme, which ultimately was a fruitless endeavour. Thereafter, he was self-employed with Classic Klean Pty Ltd. Even accepting that the closure of the proximate caravan park at Helidon caused a reduction in trade for G and Jass Pty Ltd at that location, the applicant chose to pursue the Regional Sponsored Migration Scheme pathway and subsequently self-employment. Both forms of employment were in breach of Condition 8107(3)(a)(ii) and they are both contrary to the purpose for which the Subclass 457 visa was granted to the applicant. Following careful consideration, the Tribunal finds that the circumstances in which the ground of visa cancellation arose weigh strongly in favour of cancelling the applicant’s visa.

10. Regarding the applicant’s past and present conduct towards the Department, it is apparent that he did not advise them in a timely fashion of his change of circumstances when he separated from his wife, Ms Gagandeep Kaur, who was a secondary visa holder to him, the sole director of the sponsor until mid-2017 and its sole shareholder until June 2019. The Tribunal accepts that the applicant did make notification to the Department in March 2019 as depicted in Departmental records submitted to the Tribunal (at folio 45 of the Tribunal file) and prefers that evidence to the applicant’s initial oral evidence purporting that he made the necessary notification in early 2018, given the official source of the Departmental records and the lack of credibility displayed by the applicant during the review hearing. It is worth pausing to reflect that Ms Gagandeep Kaur held formal positions of authority in G and Jass Pty Ltd for some time following her separation from the applicant and her departure from Australia. In contrast, the applicant has never held a formal positon of authority in the company. On balance, the Tribunal forms the view that the applicant knew he was required to advise of his relationship breakdown given his extensive history of holding Australian visas and that he shielded this information because he perceived it as detrimental to his migration objectives given Ms Kaur’s formal positons of authority in the sponsor. Whilst the Tribunal accepts that the applicant was at a low ebb when his relationship broke down, it is not satisfied that this situation justified his delay in notification until March 2019. Indeed, on the applicant’s own oral evidence he rejected an overture from Ms Kaur to resume the relationship around eight months after she departed Australia, therefore the Tribunal does not accept that he delayed notification of his change in circumstances until March 2019 due to uncertainty over whether that relationship would rekindle.

11. The Tribunal also considers that the applicant’s attempt to portray to the Department that he maintained continuity of genuine employment by G and Jass Pty Ltd in his nominated occupation throughout 2018 and 2019, including the purported period of unpaid leave, was disingenuous for reasons previously outlined and reflects poorly upon him. Having regard to the aforementioned matters, on balance, the Tribunal finds that the applicant’s past and present conduct towards the Department weighs strongly in favour of cancelling his visa.

12. The Tribunal has also considered the hardship that may be experienced if the applicant’s visa is cancelled and whether there is any compelling need for him to remain in Australia. The Tribunal notes the applicant submitted evidence indicating that he will face hardship if his visa is cancelled in the following ways. He outlined that he will suffer financially, emotionally and psychologically if his visa is cancelled (noting he submitted medical evidence pointing to him recently being prescribed medication for depression). The applicant contends that he cannot return to India because it will be difficult for him to obtain employment due to there not being much scope for work in the hospitality sector, it is hard to find accommodation, he will have to reside in an expensive city there to better his prospects, he was sick on his last visit to his country of nationality, and he has lived in Australia since 2007. He indicates that he will lose his dream of being a Chef in Australia and obtaining permanent residence. The applicant also advises that his family will suffer as he sends remittance income to them and they will be upset if his visa is cancelled. Further, the applicant maintained that the sponsor, G and Jass Pty Ltd, would possibly cease operations if his visa is cancelled and this will result in financial hardship to Mr Mandeep Baniwal (and his family) and Australian citizens and permanent residents who will lose their employment at Desi Spice Village Toowoomba. Further, the applicant contends that it will be difficult to find a Chef to replace him in Toowoomba and his Indian street food will be lost to that location if his visa is cancelled because of the skill shortage there.

13. The Tribunal accepts that the applicant will suffer some financial, emotional and psychological distress if his visa is cancelled. It is accepted that the applicant will not derive the same level of income in his country of nationality than if he remains in Australia and therefore his financial capacity will be somewhat reduced if his visa is cancelled. Further, the Tribunal accepts that it would be more difficult for him to repay his debts in Australia (such as a car loan and loans from friends) and support his family in India through remittance if his visa is cancelled. The Tribunal accepts the applicant suffers from depression and if his visa is cancelled this would add additional stress to him and affect his depression. The Tribunal accepts that the applicant will be upset if his visa is cancelled and he will face emotional hardship, including being removed from his friendship network in Australia and losing his dream of being a Chef in Australia with permanent residence. The Tribunal considers that the aforementioned matters of hardship to the applicant weigh moderately against cancelling his visa.

14. The Tribunal does not accept that the applicant will be unemployable if his visa is cancelled and he returns to India. This is because he has developed valuable skills and experience in the hospitality sector in Australia, including educational qualifications, and within time the Tribunal considers it realistic he will find employment in his chosen field in India. For the sake of completeness, the Tribunal does not accept that the applicant as a trained Chef specialising in Indian street food would be unable to secure employment in the hospitality sector in India as he contends. Further, the applicant has demonstrated the ability to relocate to Australia and the Tribunal considers that he possesses the necessary attributes to relocate within India to pursue a career in the hospitality sector if that offers more attractive career prospects for him than in his home town. On balance, the Tribunal does not accept that the applicant will be unable to obtain work, accommodation, and re-establish himself in India given his personal qualities, educational attainment and work experience. Whilst the Tribunal accepts there would be a period of readjustment for the applicant in returning to the Indian employment market after some years of temporary residence in Australia, and he had a brief period of non-particularised sickness when he last returned to India, it does not accept he cannot adapt given the aforementioned matters in combination with him growing up in his country of nationality. Accordingly, the Tribunal does not accept that the applicant has a compelling need to remain in Australia on account of his career ambitions or his preference not to return to live in India following his temporary residence in Australia since 2007. Additionally, the Tribunal finds that the aforementioned matters weigh neither in favour of, nor against, the cancellation of his Subclass 457 visa.

15. The Tribunal accepts that if the applicant’s visa is cancelled he will be unable to send remittance income to his family in India. Further, the Tribunal accepts that the applicant’s family will be upset if his visa is cancelled. These matters of hardship weigh slightly against cancelling the applicant’s visa. However, they do not constitute any compelling need for the applicant to remain in Australia given that the purpose of the Subclass 457 visa scheme is not for the applicant to earn funds to send remittance income to his family, nor is it for him to repay debts within Australia, and the upset to the applicant’s family or him (or his friends) will not be of such gravity as to constitute a compelling need in the assessment of the Tribunal. Additionally, the Tribunal accepts that the applicant is receiving treatment in respect of his mental health and that some disruption would be caused to it if his visa is cancelled and he returns to India. However, the Tribunal does not accept that this treatment constitutes a compelling need for the applicant to remain in Australia given the applicant has demonstrated the ability to continue to function in the workforce despite his treatment and the medical evidence does not suggest the gravity of the condition is such as to require his ongoing presence in Australia.

1. The Tribunal accepts that G and Jass Pty Ltd would possibly cease operations if the applicant’s visa is cancelled and some financial hardship would result for Mr Mandeep Baniwal (and his family) and the applicant. The Tribunal also accepts that if the applicant’s visa is cancelled a limited amount of Australian citizens and permanent residents would lose their employment, it might be difficult to find an Indian Chef specialising in street food in Toowoomba and that this location might lose the services of the Desi Spice Village. However, the aforementioned matters weigh only slightly against cancelling the applicant’s Subclass 457 visa, and do not constitute compelling reasons for him to remain in Australia, given that G and Jass Pty Ltd is a vehicle primarily being utilised to secure a migration outcome for the applicant as has been previously outlined. For the sake of completeness, the Tribunal also notes that the submitted ATO records demonstrate that G and Jass Pty Ltd has not actually paid GST or PAYG withholding tax for a significant period which buttresses the aforementioned conclusions.

2. Additionally, the Tribunal does not consider there to be a compelling need for the applicant to remain in Australia as a result of his allegations of mistreatment from Ashleigh of One Call Vacate (and her mother) and being owed wages. This is because there is no persuasive evidence before the Tribunal that the applicant is pursuing such allegations with any formal authority. Further, the Tribunal finds that the aforementioned matters weigh neither in favour of, nor against, the cancellation of his Subclass 457 visa in the prevailing circumstances.

3. Further, the Tribunal does not consider there to be a compelling need for the applicant to remain in Australia to pursue divorce proceedings in connection with his separation from Ms Gagandeep Kaur as this is not the purpose for which the Subclass 457 visa was granted, he might engage representatives to act on his behalf and he may liaise with the Department for another temporary visa to remain in Australia pending the outcome of proceedings if this were appropriate having regard to the particulars of those proceedings moving forward. Additionally, the Tribunal finds that the aforementioned matters weigh neither in favour of, nor against, the cancellation of his Subclass 457 visa in the circumstances pertaining to this review.

4. Following careful consideration of the evidence, the Tribunal does not accept that there is a compelling need for the applicant to remain in Australia holding a Subclass 457 visa. Accordingly, this consideration weighs neither in favour of, nor against, cancelling his visa. Whilst the Tribunal accepts that visa cancellation might cause some hardship to the applicant, and others including his family, friends and Mr Baniwal (and his family) as previously outlined, this circumstance must be balanced against the fact that the applicant came to Australia on a temporary visa, and has remained on a series of temporary visas, which should create no expectation of remaining in Australia permanently.

5. The Tribunal notes that the Subclass 457 visa of Ms Gagandeep Kaur will be consequentially cancelled pursuant to s.140 of the Act if the applicant’s visa is cancelled. However, her visa was granted on the basis of her being a member of the family unit of the applicant and in any event she no longer holds this status. Following careful consideration, the Tribunal finds that the consequential cancellation of the visa held by Ms Gagandeep Kaur weighs neither in favour of, nor against, the cancellation of the applicant’s visa in the aforementioned circumstances.

6. With respect to the mandatory legal consequences of visa cancellation, the Tribunal notes that if the applicant and Ms Gagandeep Kaur do not hold a valid visa they would be unlawful non-citizens and subject to immigration detention, it would be difficult for them to make visa applications in Australia and they would be liable to removal from Australia. However, the Tribunal also notes that it is unlikely that the applicant himself will be affected by the three year exclusion period in PIC 4013 and 4014 relating to certain visas if he applies for a temporary visa offshore given his circumstances, including that he obtained a Bridging Visa E shortly after his Subclass 457 visa was cancelled. On balance, the Tribunal finds that the mandatory legal consequences of cancellation weigh neither in favour of, nor against, cancellation of the applicant’s visa given they are the intended consequences of legislation.

7. In relation to the consideration of Australia’s international obligations, there is no persuasive evidence before the Tribunal that any such obligations would be breached as a result of the applicant’s visa being cancelled. Indeed, the applicant in his oral evidence could not point to any such potential breaches. The Tribunal notes that the applicant referred to being threatened by Ms Gagandeep Kaur’s mother after she returned to India. Given that this contention lacks specificity, in conjunction with the credibility concerns surrounding the applicant, the Tribunal does not accept that he is at any risk of harm whatsoever from either Ms Kaur or her family in India or elsewhere.

100.   On balance, the Tribunal does not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, if his visa is cancelled and he returns to India. For completeness, the Tribunal is not satisfied that the applicant faces any harm whatsoever from any other person in India if his visa is cancelled and he returns to his country of nationality. Accordingly, there is no persuasive evidence before the Tribunal to suggest that there would be any breach of Australia’s non-refoulement obligations if the applicant’s visa is cancelled. On balance, the consideration of Australia’s international obligations weighs neither in favour of, nor against, the cancellation of the applicant’s visa.

101.   The Tribunal has carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there is any other relevant matter weighing either in favour of, or against, cancellation of his visa.

CONCLUSION

102.   The Tribunal has carefully reflected upon the factors both against, and in favour of, cancelling the applicant’s Subclass 457 visa. As outlined above, the Tribunal notes that some factors weigh against cancellation of the visa. These factors must be carefully balanced with those in favour of the visa cancellation. On balance, following much consideration, the Tribunal finds that the factors in favour of cancelling the applicant’s visa outweigh those factors to the contrary.

103.   Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should be cancelled.

104.   The Tribunal also records it concern that Ms Kushdeep Kaur appears to have maintained a Subclass 457 visa as a secondary visa applicant for a significant period of time following her separation from the applicant. Additionally, the Tribunal records its concern regarding the apparent non-payment of taxation by G and Jass Pty Ltd. The Tribunal raises these matters to the attention of the Department for any further consideration or referral it may wish to make.

DECISION

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

K. Chapman
Member