Singh (Migration)

[2023] AATA 111

Singh (Migration) [2023] AATA 111 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surinder Singh
Mrs Jasdeep Kaur
Miss Avleen Kaur

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  2204530

HOME AFFAIRS REFERENCE(S):          BCC2020/1955091

MEMBER:Noelle Hossen

DATE:5 January 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 05 January 2023 at 3:24pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class GK) visa – Subclass 489 Skilled - Regional (Provisional) – incorrect information in the visa application – employment history – concurrent work as a taxi driver – skills assessment obtained – employer verified work rosters – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140
Migration Regulations 1994, Schedule 8, Condition 8107

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 to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with Section 101(b) of the migration Act 1958 (the Act). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 24 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hom Pyashi (the owner of the business).

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. 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

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

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

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

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

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s.101(b), in the following respects: The delegate stated as follows:” On page 13 of the visa application form, under the heading “Employment history”, the form asked, give details of employment undertaken during the 10 year period before the invitation to lodge this application.” The visa holder answered that he was employed as a cook for Pyashi Pty Ltd, working between 29 June 2015 and 2 July 2017. I consider this answer to be incorrect because information before me indicates that the visa holder did not undertake full time work for Pyashi Pty Ltd between April 2016 and October 2016 as it appears, he was working as a Taxi driver for Black and White cabs during this period.”

11. The first named applicant submitted as follows in written submissions: “We submit that the Decision to cancel the Applicant’s Visa is incorrect and the circumstances described by the Delegate in the cancellation are not an accurate depiction of the actual situation.

    The delegate alleged that the applicant had not provided correct information by including his employment with Pyashi Pty Ltd in his subclass 489 visa Application and alleges that the applicant did not work as a cook during the period, instead working only as a taxi driver. It is not contested that the work as a taxi driver was in breach of the Applicant’s 8107 visa condition attached to the subclass 457 visa, however in our submission this does not mean that the employment as a cook was not genuine.”

    We are instructed that the applicant was in fact working for Pyashi Pty Ltd as a cook during the period between 29 June 2015 and 2 July 2017 as the holder of the subclass 457 Visa. The applicant has repeatedly instructed that he was working as a cook at Pyashi Pty Ltd and would work the morning shift before working in the afternoons and evenings as a taxi driver. We provide PAYG summaries for the applicant for the financial years ending 2016 and 2017 (see annexure 1 to 2) from Pyashi Pty Ltd confirming that the applicant received $53,999 gross payments for the year 2016 and 53,999 gross payments for the year 2017. We provide a Notice of Assessment for the financial year ending 2016 for the applicant (see annexure 3.) We provide a number of payslips for the applicant from the Pyashi Pty Ltd between 30^th of May 2016 and 25 June 2017 (see annexure 4r). In addition to this we submit an employer reference letter from Pyashi Pty Ltd advising that the applicant worked between 29 June 2015 and 2 July 2017 as a cook see annexure five. The applicant also obtained a TRA skills assessment on 28 September 2017 and provided evidence of his employment with Pyashi Pty Ltd for purposes of this application (see annexure 6.)

    The Director of Pyashi Pty Ltd Mr Hom Pyashi has previously provided statutory declarations to the Department and has now provided an additional statutory declaration (see annexure 7 to 9) attesting that the applicant was employed with his business and typically worked morning shifts. Mr Pyashi has instructed in a statutory declaration (see annexure 9) that the roster provided to the department was a draft roster that was inadvertently provided to the Department. Mr Pyashi has instructed in his statutory declaration (see annexure 9) that he was not personally involved in the rostering and this task was usually completed by the manager or the bookkeeper. We provide additional rosters (see annexure 10 to 11). In our submission the explanation as to simple error being the reason for the incorrect rosters being provided is reasonable. If the allegation from the department was that Mr Singh had falsified all of his employment with Pyashi Pty Ltd then inherent in that accusation is that the business must have been complicit in that. It therefore defies all logic for the business to then provide work rosters which explicitly contradict the information obtained from the taxi directorate that Mr Singh was invariably driving taxis from approximately 5 PM onwards for the period in question.

    Mr Pyashi has provided an updated statement dated 19 October 2022 (see annexure 9) which provides that the applicant was working in his restaurants between 29 June 2015 and 2 July 2017. Mr Pyashi confirms that the applicant had responded to an advertisement for a cook position which is how he came to be employed and sponsored by the business. Mr Pyashi explained that he owned several restaurants during this time that were all fully or partly owned by Pyashi Pty Ltd and therefore were” associated entities” (pursuant to Section 50 AAA of the Corporations Act 2001) which allowed for the applicant to work in different restaurants in compliance with these Visa conditions. Mr Pyashi confirms that he was not aware at the time the applicant was driving taxis but confirms that the applicant genuinely worked his rostered shifts.

    Harpreet Kaur has instructed that the applicant worked with her at Gurkhali restaurants between 29 June 2015 to 2 July 2017 and confirms that the applicant worked the morning shift at the restaurant (see annexure 12). We also provide a selection of photos of the applicant working in the restaurant taken for the purposes of his skill assessment with TRAC (annexure 13) noting that these are not intended to be definitive evidence of his employment but are not nonetheless corroborative evidence of his employment.

    We acknowledge that while working for Pyashi Pty Ltd the applicant was working as a taxi driver for Black and White cabs. The driver logins from black-and-white Cabs (see annexure 14 to 15) show that the applicant would almost invariably log on between 4 PM and 6 PM for his shifts and finish in the early hours of the morning. An email from Mr Rav Kumar at Black-and-white Cabs (see annexure 16) also confirms that the applicant was an afternoon and evening shift driver

    While we acknowledge that the applicant was not permitted to work for anyone other than the nominator while holding the 457 Visa which was in breach of his Visa condition 8107, we submit that he genuinely worked for Pyashi Pty Ltd and was able to do so as he worked the morning shift for Pyashi Pty Ltd in the evening shift for Black-and-White Cabs. This breach is very different to the allegation made by the delegate in the cancellation that the work he did for Pyashi Pty Ltd was not undertaken at all. We are instructed by the applicant that he needed to undertake additional employment to support his family, as he was the sole breadwinner at the time. We submit that the circumstances to cancel the visa do not exist and the decision to cancel the applicant subclass 489 Visa should be set aside.”

12. At the hearing Mr Pyashi gave evidence and confirmed the contents of the submissions lodged by the applicant. The Tribunal accepts his evidence as being truthful, that the applicant did work on a full-time basis for the employer Pyashi Pty Ltd.

13. The oral evidence of Mr Pyashi was consistent with the evidence of the applicant given at the hearing. The evidence given at the hearing was consistent with the submissions provided as above, together with the annexures attached.

14. The Tribunal has read all the documents filed and the annexures attached to the Submissions and considered the evidence.

15. The applicant did not provide incorrect information in his application as he did work for Pyashi Pty Ltd on a full-time basis between the 29 June 2015 and the 2 July 2017.The Tribunal accepts that the rosters provided by Pyashi Pty Ltd to the Department were problematic and did not confirm that the applicant worked on a full-time basis. Mr Pyashi indicated in his evidence that the business had closed, and it was difficult to find the correct written evidence of the daily rosters, as it was so long ago. He confirmed that he did not personally write up the rosters and that the rosters provided to the Department by him, at the time of the investigation were incorrect.

16. The evidence suggests that he did work on a full-time basis as he was paid in accordance with his full-time contract. The PAYG payment summaries confirm that evidence. The Tribunal accepts the oral evidence of the applicant and Mr Pyashi as being correct. The finding of noncompliance with Section 101(b) of the Act by the delegate of the Department is incorrect.

17. For these reasons, the Tribunal finds that there was no non-compliance with s101 (b) by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    decision

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Noelle Hossen
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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