Singh (Migration)

[2019] AATA 5010

Singh (Migration) [2019] AATA 5010 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspal Singh

CASE NUMBER:  1812541

HOME AFFAIRS REFERENCE(S):           BCC2017/1448377

MEMBER:Stavros Georgiadis

DATE:17 July 2019

PLACE OF DECISION:  Adelaide

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 17 July 2019 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 – mechanic – employment terminated by new business owner – extended leave – illness – medical certificate provided – genuine effort to regain employment – circumstances beyond applicant’s control – issues with migration agent – truthful witness – consistent evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 137Q, 375A
Migration Regulations 1994 (Cth), r 2.50AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2018 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q(2) on the basis that the applicant’s employment terminated within the required employment period of 2 years and the delegate was not satisfied that the applicant made a genuine effort to be engaged in the specified employment for the required period of employment. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 15 July 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

   Does the ground for cancellation exist? (employment terminated within 2 years)

7. 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.

8. In this particular case the applicant was granted a Class RN Subclass 187 visa on 24 October 2016 for specified work as an automotive mechanic with the sponsoring employer, SS Enterprises (WA) Pty Ltd (trading as Brian Flatman Automotive).  The applicant had commenced work with that employer on 20 March 2015 as an ongoing employee with recreation leave, sick leave and other conditions / industrial entitlements. Although there is no written contract of employment, the applicant’s leave entitlements are confirmed on payslips provided to the Tribunal relating to that employment.  The applicant was also entitled to superannuation contributions under federal, Superannuation Guarantee, legislation.

9. The applicant’s visa was cancelled on 30 April 2018 after the Department was informed that the applicant’s employment with the sponsoring employer had ceased on 27 December 2016 and he had not returned to work after the holiday leave.  The applicant’s employer formally terminated his employment in writing by e-mail on 10 March 2017. 

10. The Department had before it information provided by an informant that led to issuing to the Tribunal a Certificate and Notification Regarding Disclosure of Certain Information (the s.375A certificate) under s.375A(2)(b) of the Act.  The Tribunal considered the information and grounds stated (being public interest immunity) for issuing the s.375A certificate and has concluded that the certificate is not valid.  This is because the Tribunal is not satisfied that disclosure of ‘internal department processes’ and other information would be contrary to the public interest to not disclose the information to the applicant.  Accordingly, relevant information identified in the s.375A certificate (as contained in folios 1-11, 15, and 78-79) was put to the applicant at the hearing with an opportunity provided for the applicant to respond to the information (discussed further below).

11. The applicant’s written submissions are consistent with his oral evidence provided at the hearing and are set out below (in part):

    “ ... Inability to continue employment at S.S. Enterprises (WA) Pty Ltd [ABN -84600082951] t/as Brian Flatman  Automotive

    10. Employment History at Brian Flatman Automotive - Jaspal started his employment at Brian Flatman Automotive as a Motor-Mechanic on 20/03/2015 on part-time basis. The employer sponsored/nominated him for 457 visa and his visa got approved on 31/07/2015. Jaspal continued his employment as a Motor-Mechanic on full-time basis at Brian Flatman Automotive. Salary slips and group certificate have been attached to substantiate our claims. Later on the employer nominated him for RSMS visa under question.

    11. Jaspal was on unpaid leave during his visit to India in January 2017. He was on approved unpaid leave from 27/12/2016 to 16/02/2017 (screen shot of text message from the employer and an email as proof has been attached). Jaspal received an email from [email protected] (employer's email) dated 19/02/2017 as an approval of his extended unpaid leave. Unfortunately, he fell sick and sent an email to his employer in order to extend his stay until March 2017. Jaspal sent the email to his employer on 27/02/2017 in order to inform that he was unwell and not able to start work for some time. He also sent a medical certificate regarding his illness.

    12.   Jaspal came back from India on 05/03/2017 and immediately contacted his employer Ms Sukhbir Kaur to commence his employment. She advised him that S.S. Enterprises (WA) Pty Ltd T/As Brian Flatman Automotive had been sold to Mr Sanjeev Kumar (New owner and Jaspal's former colleague) on 08/02/2017 and Jaspal should contact him for any future correspondence. Jaspal had good working relations with his previous boss who nominated him for the position and RSMS visa. He was under the impression that Ms Sukhbir Kaur was still the owner of the business since the last email he received on 19/02/2017 was sent from [email protected] which is Ms Kaur's business email. The new owner continued using Sukhbir Kaur's email after the takeover.

    13.        Soon after the meeting with previous employer Sukhbir Kaur, the new owner Mr Sanjeev Kumar sent him an email on 10/03/2017 and informed him that he had been terminated from his job. It was a big shock for Jaspal and he was very terribly disappointed on hearing this news.

    14.        However, Jaspal contacted the new owner Mr Sanjeev Kumar and asked if he could join work. Jaspal also requested for his pending superannuation. He became very aggressive on hearing this. He warned him that if Jaspal tried contacting him again he will inform the Department of Immigration that Jaspal had quit the job and he would get his visa cancelled. Jaspal and Sanjeev Kumar were never good friends or work colleagues. Moreover, Sanjeev also indicated to Jaspal that his business is not doing well and he can't afford to employ another person in his business. There was exchange of emails between Jaspal and Sanjeev (attached).

    15.        Jaspal found himself helpless. He wanted to start working at Brian Flatman Automotive, but due to change of ownership (ASIC report attached) and new employer's reluctance to employ him, he could not get back to work.

    16.        Mr Sanjeev Kumar has provided a letter explaining his circumstances back then and reasons why he was unable to employ Jaspal for his position.

    Genuine efforts to continue employment

    17.        Jaspal went to a migration agent Mr Vijay Sharma to seek advice regarding his options in order to fulfil his visa conditions since Jaspal did not want to breach any of his visa conditions. The agent advised him that he did not need to do anything, he was a permanent resident and there were no conditions on his visa. Jaspal relied on his advice since he thought that a Registered Migration Agent will provide him the correct advice. Mr Vijay Sharma gave him the wrong advice which has ruined his life. It is not a surprise that Mr Vijay Sharma has been sanctioned by MARA for 2 years w.e.f. 15/05/2018 for his neglect and providing wrong advice to his clients. An extract of this report has been attached.

    18.        Jaspal contacted the Department of Immigration in May 2017 via email (attached) to explain his situation and seeking an advice in his situation. It indicates that Jaspal was naïve and did not have accurate information about what needs to be done under his circumstances.

    19.        However, Jaspal kept looking for new job and applied for the same position (Motor-Mechanic) but unable to find a job in same field. He knocked on the doors of few employers to ask for the job but to no vain. He has obtained letters from the employers he contacted, and they have been attached for your consideration. He made some online applications too, but they were declined (email from Mining Australia, Indeed Job Advertisement and business cards of several automotive businesses he contacted for job).

    20.        Jaspal went to India again from 28/01/2018 to 05/04/2018 to get married. After coming back from India, he started his hunt for the job in his own field and finally got a job as Motor-Mechanic. He continues to work for the same employer Auto Masters Balcatta since August 2018 to till date. His employer Kevin G Lunn has provided a reference letter supporting the claims (evidence attached).

    21.        Furthermore, AAT has substituted Department's decision to cancel. RSMS visa in the case of Parekh (Migration) 120181 AATA 2713 (23 May 2018). The Judge considered that applicant's employment ceased when the business was closed and she has had no control over that. The applicant had made genuine attempt to be engaged in an employment and presented the evidence to support the claims. It is a similar case to this case since Jaspal had made genuine effort to continue employment at Brian Flatman Automotive, but since the employer did not want to employ him due to change of ownership, the circumstances were out of his control. Jaspal had tried to find a job afterwards and he found one in August 2018.

    1.      The Macquarie Dictionary Online provides the literal meaning of "genuine effort". The word 'genuine' is defined as: "being truly such; real; authentic: sincere; free from pretence or affectation." The word 'effort' is also defined: "exertion of power, physical or mental; an attempt; something done by exertion; an achievement..."¹

    1.   In Weng v MIAC (no. 2) (20111 FCA 444 , when considering the meaning of the phrase "genuine effort"
    in s134(1) of the Act, the court agreed with the interpretation in Yam v Minister for Immigration and Multicultural and Indigenous Affairs (2004] AATA 283  fat 531,  that

    "genuine" in s134(2) means effort that is more than "superficial or token".'

    Genuine Effort

    2.    the visa holder's reasons 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)

    Mr Jaspal Singh was continuously working at Brian Flatman Automotive since March 2015 as a Motor Mechanic. His RSMS visa was granted on 24/10/2016, hence he fulfils the requirement of commencing the employment within the prescribed period. Jaspal was sent on leave unpaid leave on 27/12/2016 till 16/02/2017. This leave was approved by his employer (Sukhbir Kaur) verbally. Later on the employer sent him a text that they need in writing from Jaspal that he is on leave. The text by the employer indicates that they had approved the leave otherwise the employer would not have asked for a written request.

    Jaspal left for India on 17/01/2017 where he fell sick and had to extend his stay. His extended leave was approved by the employer in an email dated 19/02/2017. He informed his employer via email on 27/02/2017 that he needed to extend his stay until his recovery. Jaspal had sent the email to Sukhbir Kaur to her official email id [email protected]  Jaspal was unaware of the fact the there is a changeover of the ownership and Sukhbir Kaur is no longer the owner of the business. On 10/03/2017, Jaspal received an email from [email protected] about the termination of his employment. Upon coming back, he met his employer Ms Kaur who told her about the sale of business. Jaspal contacted the new owner Mr Sanjeev Kumar who was reluctant to employ him. When Jaspal insisted, Mr Kumar threatened him that he will inform the Department if he bothered him again. A letter from Sanjeev Kumar has been attached supporting the arguments. Hence, Jaspal could not complete two years employment at Brian Flatman Automotive.

    3.    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

    Since Jaspal had been working at Brian Flatman Automotive since March 2015 and tried every single resort to re-join them after coming back from India indicate that there was no collusion between him and his employer. Moreover, Mr Kumar was not even the employer when Jaspal's RSMS visa application was lodged. His nomination was lodged by his previous employer who considered Jaspal's skills appropriate for the position since he was working for her from long time.

    Furthermore, Jaspal did not resign from the position. His employment was rather terminated by his new owner Mr Kumar.

    4in the case of termination, the period of the visa holder's employment with the employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort)

    As explained earlier, Jaspal was working at Brian Flatman Automotive since March 2015 which is more than 12 months period when his employment was terminated. The evidence of his work has been attached.

    5any other matter which is relevant to the commencement or termination of the employment The new employer in his statement has confirmed that he did not want to employ Jaspal due restructuring of the business and its financial instability. He confirms that Jaspal had contacted him on several occasions to resume his job. The situation was beyond Jaspal's control and he could not get back to work.

    6the position was not filled or did not remain viable due to a serious downturn in business activity

    Mr Kumar further confirms that the position was actually not available and he did not employ anyone for Jaspal's position. Since he had recently bought the business, he was not in the position to hire new employees and pay their salaries.

    7.financial loss, bankruptcy or closure of the business

    It, is clear from ASIC report, that the business had changed hands. The new owner completely restructured the business and was not in the position to employ Jaspal and pay his salary for two years. Mr Kumar has confirmed this statement in the statutory declaration provided herewith.

    Why the visa should not be cancelled

    8.Attempts to find another employer

    After losing his job at Brian Flatman Automotive, Jaspal made sincere efforts to look for another job in his own field. He knocked on the doors of few employers to ask for the job but to no vain [avail]. He has obtained letters from the employers he contacted, and they have been attached for your consideration. He made some online applications too, but they were declined (email from Mining Australia, Indeed Job Advertisement and business cards of several automotive businesses he contacted for job).

    9.Current Employment

    Jaspal is currently employed as a Motor Mechanic at Auto Masters Balcatta since August 2018. His employer is very impressed with his work ethics and skills. He has provided a letter confirming his employment period and duties performed by Jaspal. He claims that his business will be largely impacted if Jaspal is not there since he is highly skilled and experienced employee (Employment evidence and letter attached).

    10.Employment at Brian Flatman Automotive

    Jaspal had started working at Brian Flatman Automotive in March 2015 as a Motor Mechanic which indicates that he was genuinely interested to work as Motor Mechanic. It was not until late 2015 when his previous employer decided to nominate him for RSMS visa considering his skills. He remained in the employment till December 2016 when his employer asked him to go on leave since there was not enough work for him during that period.

    11.  Two years employment period

    The two years employment period ended on 24/04/2019 since the visa grant which includes 6 months period after the grant. Jaspal has remained employed in his nominated occupation for most of the time. Moreover, he kept looking for the job for the period he was not employed. It proves that Jaspal has had the honest intention to continue his job in his own field, but the circumstances were out of his control.

    12. History of Visas held by Jaspal

    Jaspal has successfully completed his studies (Certificate III & IV and Diploma in Automotive and Diploma in Management) while he was on student visa. He has complied with all the visa conditions associated to his student visa. He attended his classes regularly and completed the units of his course competently. Jaspal is a responsible person and understands the obligations to any visa he has had in past. He was on subclass 457 from 31/07/2015 and as per his visa conditions he worked for his employer in the same occupation he was nominated for until he remained on that visa.
    After the grant of RSMS visa, Jaspal was still working at Brian Flatman Automotive until he went on leave. He made every single effort to resume his work but the employer did not support him. He kept looking for new job in the same field, but he could not for a while find one. He is now once again working in his area of expertise since August 2018.

    Jaspal has worked hard with honesty to comply with all visa conditions, but sometimes it becomes impossible to control everything.

    Conclusion

    We ask that the Member set aside the primary decision and remit the case back to the Department with the direction that the attached evidence of Jaspal's genuine efforts to remain employed in his nominated occupation and to commence employment at Brian Flatman Automotive consideration. ...”

    _________________________________________________________________________

12. The Tribunal accepts form the oral evidence and employment documents produced, that the applicant was continuously working with the sponsor employer (trading as Brian Flatman Automotive) since 20 March 2015 as an automotive mechanic. The Tribunal further accepts that as the applicant’s RSMS Subclass 187 visa was granted on 24 October 2016, the applicant fulfils the requirement of commencing the specified employment within the prescribed period.

1. The Tribunal finds that the applicant has worked as an automotive mechanic with the sponsoring employer for a period of almost 2 years from commencement on 20 March 2015 to the time of formal (written) termination of that employment on 10 March 2017.  The Tribunal accepts the evidence that during his employment, the applicant was on various periods of paid and unpaid leave, in aggregate of approximately 2 months, prior to his return from overseas (India) on 6 March 2017. The Tribunal accepts that the latter part of his visit there and return to Australia was delayed slightly due to falling ill in India as there is Medical certification provided to the Tribunal in support of this.

2. The Tribunal accepts the submission made at the hearing that the 2 year ‘required employment period’ is to commence from the grant of the Subclass 187 visa on 24 October 2016. Accordingly, the Tribunal finds that the applicant, as a Subclass 187 visa holder, was not engaged in that employment for the required 2 years.  In these circumstances, the Tribunal must be satisfied under cl.137Q(2)(b) that for the grant of the visa, the applicant has made a genuine effort to be engaged in the employment (as automotive mechanic) for the required employment period of two years from grant of the visa.  The material period therefore, extends from 24 October 2016 to 24 October 2018.

   Genuine effort

3. The Tribunal accepts the applicant to be a truthful witness as he provided spontaneous answers to the questions and issues put to him at the hearing without any significant attempt to deflect or avoid questions. The Tribunal accepts that, at times, the applicant was nervous and perhaps unfamiliar with the Tribunal formalities, but considers overall that his oral evidence is consistent and plausible in the context of other documentary material before the Tribunal on relevant matters.

4. The Tribunal has carefully considered the submissions and oral evidence provided and finds, on balance, that the applicant has made a genuine effort to be engaged in the specified employment of automotive mechanic for the required employment period of 2 years, in this case to 24 October 2018.  The Tribunal accepts that upon being notified of his terminated employment, the applicant made several and considerable attempts to re-engage with his former employer, SS Enterprises (WA) Pty Ltd (trading as Brian Flatman Automotive).  This includes ongoing communications while overseas together with making calls to the former and new owners of the business immediately upon his return from overseas with the result that the former owner directed the applicant to the new owner but the new owner avoiding taking his calls.  Upon return to Australia, the visa applicant also personally attended his former workplace to meet with the new owner and request his job to be reinstated for him to continue to work there as a mechanic.  The oral evidence is that he was advised by the new owner ‘there has been a downturn in business ...things are slow’ but that the applicant would be advised if that changed.  However, the applicant was not advised of any change or invited back to his employment.

5. The Tribunal accepts that the applicant made numerous and sustained attempts to be re-instated consistent with an intention to continue to work as an automatic mechanic with his former employer.  The Tribunal was provided with a Statutory Declaration by Mr Sanjeev Kumar, the new owner of SS Enterprises (WA) Pty Ltd as Trustee for Reshmi Devi Family Trust (trading as Brian Flatman Automotive) and places substantial weight on this.  The new owner declared on 10 July 2019 at Cannington Police Station (Western Australia) that “Jaspal came to see me to resume his job, but I denied him.”  He adds “I denied paying him the superannuation [unpaid by the former owner] and this situation created a dispute between us - which was paid later on”.  The declaration states: “I confirm that Jaspal had made genuine attempts to commence his job at Brian Flatman Automotive, but I did not employ him for the reasons stated above”. 

6. At the hearing the applicant explained, when asked, that the new owner was prepared to provide the above Statutory Declaration once the applicant had contacted him and made him aware that his visa has been cancelled as a consequence of his job termination and refusal to re-engage him.  The Tribunal notes that the visa applicant has been in Australia for some 12 years in aggregate since first arrival and has in this time undertaken studies and completed numerous specific courses in areas relevant to work as an automotive mechanic.

7. The Tribunal notes also that the applicant’s termination occurred when there was a change of ownership of the business at a time when there was an apparent downturn in business patronage, and also in the context of unpaid superannuation payments being raised that resulted in some conflict with the applicant’s employer on that point. The Tribunal accepts that the visa applicant’s termination and the refusal of his numerous attempts for reinstatement was beyond his control.  The Tribunal accepts that he could therefore, not return to his former work, despite his clear intention, desire and attempts to do so.

8. Since discontinuance of employment with the sponsoring employer, the Tribunal accepts that the visa applicant has made further sustained attempts to secure employment as an automotive mechanic during the balance of the material 2 year period and has eventually been successful securing work as an automotive mechanic.  This has included:

   ·door knocking numerous employers to request work as a mechanic but without success initially. The Tribunal notes the numerous letters the applicant obtained from potential employers approached, as attached to the applicant’s written submissions including: Lethal Performance; Alex Mechanics; Advanced Mobile Tune and SRB Automotive.

   ·online and other applications that were declined and contacts made (i.e. evidence by the correspondence from Mining Australia, Indeed Job Advertisement and the business cards of several automotive businesses contacted.

   ·securing current ongoing employment as an automotive mechanic with Auto Masters Balcatta, since August 2018.

9. In addition to the above evidence and submissions, the applicant emphasised at the hearing that he has undertaken considerable specific training for automotive mechanic including at Certificate III, Certificate IV, and Diploma levels (Melbourne, Australia).  He told the tribunal that he also seeks to undertake further training when permitted to do so, in Heavy Equipment Diesel Mechanics so that he may continue his career in the automotive mechanical trades.  The Tribunal considers this is consistent with an intention to continue and maintain ongoing employment in the specified area for the purposes of his Subclass 187 visa. 

10. The Tribunal accepts that, although the applicant worked for several months as a casual Security Officer to meet day-to-day living expenses, his immediate uptake of work as an automotive mechanic (with Auto Masters Balcatta) at the first opportunity, in August 2018 is consistent with the purpose for grant of the Subclass 187 visa.

11. The Tribunal is satisfied overall, on balance, that the applicant has made a genuine effort to be engaged as an automotive mechanic for the 2 year required employment period. He therefore, does not breach cl.137Q(2)(b).

12. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

13. 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.

    Stavros Georgiadis

    
    

    Member