singh (Migration)

[2017] AATA 418

singh (Migration) [2017] AATA 418 (7 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaurang Singh
Mrs Chhavi Rani
Ms Raj Nandini Singh

CASE NUMBER:  1515392

DIBP REFERENCE(S):  BCC2014/123723

MEMBER:Bruce Henry

DATE:7 March 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.212 of Schedule 2 to the Regulations.

Statement made on 07 March 2017 at 3:12pm

CATCHWORDS

Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) –- Employer offer of permanent position - ANZCO occupation list – Position must match approved nomination – Not working in the nominated occupation -   – Management of records - No intention of working entirely in the nomination position 

LEGISLATION
Migration Act, 1958 – s 65
Migration Regulations 1994, Schedule 2 – cl.186.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 October 2015 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 14 January 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Records Manager (ANZSCO 224214) at Spencer College Pty Ltd in Brisbane. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.212 of Schedule 2 to the Regulations because the applicant had not been working in the nominated occupation of Records Manager for the entire period that he held a subclass 457 visa and did not intend to work entirely in the nominated position of Records Manager in the future.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets cl.186.212, which requires that the nominated position will provide the applicant with the employment referred to the related nomination application. The Department’s policy on this matter states[1]:

   The position to which the visa application relates must provide the applicant with the employment referred to in the nomination. Additionally, the occupation to which the position relates, which is provided as an ANZSCO occupation upon visa application, must match exactly to the approved nomination. Officers may without further enquiry consider this criterion satisfied provided:

   ·     the employment contract provided by the visa applicant supports that assessment

   ·     the occupation on the approved nomination matches the occupation provided on the visa application form and

   ·     no other information or evidence to the contrary has been received.

   [1] PAM3, Home > Migration > 2014 > 01/01/2014 - 13/02/2014 > P. 01/01/2014 - 13/02/2014 > PAM3 - MIGRATION REGULATIONS - SCHEDULES > Sch2 Visa 186 - Employer Nomination Scheme > DIRECT ENTRY STREAM, paragraph 21

9. The decision to refuse the visa is explained in the decision record of the delegate, a copy of which the applicant has provided to the Tribunal, as follows:

   Mr Gaurang Singh applied for a subclass 186 visa on 14 January 2014 in relation to an approved nominated occupation of ‘Records Manager (ANZSCO 224214)’. Integrity checks were conducted to verify the duties of Mr Gaurang Singh. During this site visit on 15 December 2014, the General Manager of the sponsorship business, Mr Gurnam Singh, confirmed that Mr Gaurang Singh has been working in a position other than the nominated position for the entire period of his employment.
   During the site visit, Department of Immigration and Border Protection officers were advised by an employee at reception that Mr Gaurang Singh is employed as a teacher. The General manager of Spencer College also advised officers that Mr Gaurang Singh’s duties were split between his role as a Records Manager and teacher and that Mr Gaurang Singh has been undertaking these duties since the start of his employment in 2011. The site visit officers concluded that Mr Gaurang Singh had not been working in the nominated occupation of Records Manager for the entire period that he held a 457 and that Mr Gaurang Singh did not intend to work entirely in the nominated position of Records Manager in the future.
   The position to which the visa application relates must provide Mr Gaurang Singh with the employment referred to in the nomination (as Records Manager). The occupation, to which the position relates, which is provided as an ANZSCO occupation upon visa application, must match exactly to the approved nomination.
   On 26 August 2015, Mr Gaurang Singh was given 28 days to comment on the Department of Immigration and Border Protection (DIBP) findings.
   On 23 September 2015, Mr Gaurang Singh provided supporting documents including at least 37 statutory declarations from students in addition to statutory declarations from the Academic Manager Mr Kulwant Singh, the General Manager Mr Gurnam Singh, and an unsigned response letter to the Department’s invitation to comment on DIBP officers’ findings.
   I note that during the site visit conducted on 15 December 2014, Mr Gurnam Singh stated that Mr Gaurang Singh’s duties were evenly split between being a teacher and a Records Manager. Mr Gaurang Singh has provided a statement dated 29th January 2015 from Mr Gurnam Singh in which he has declared that Mr Gaurang Singh is employed full time in the capacity of a Records manager. I find that this statement is inconsistent with the information Mr Gurnam Singh provided to the DIBP officers during the site visit on 15 December 2014.
   Mr Gurnam Singh has not provided any explanation for the inconsistency. Therefore, I find the initial statements made by Mr Gurnam Singh during the site visit on 15 December 2014 to be more credible.
   I also note that during the site visit, Mr Kulwant Singh adviced officers that Mr Gaurang Singh is employed as a teacher. Mr Kulwant Singh has provided a statutory declaration dated 1 June 2015 indicating that on the day of the visit he was filling for the receptionist who was off for the day. Mr Kulwant Singh indicated that he does not recall informing officers that Mr Gaurang Singh is employed as a teacher at the College. He also confirmed that “…I could not have said that because he is not a teacher…” I find that both statements provided to DIBP officers and in his statutory declaration are inconsistent and cannot both be accurate.
   Therefore, I find the initial statement made by Mr Kulwant Singh during the site visit on 15 December 2014 to be more credible.
   Based on the above, I find that Mr Gaurang Singh had not been working in the nominated occupation of Records Manager for the entire period that he held a Subclass 457 visa and that Mr Gaurang Singh did not intend to work entirely in the nominated position of Records Manager in the future.
   Therefore, Mr Gaurang Singh does not satisfy clause 186.212.

10. The delegate’s decision to refuse the visa was made on 23 October 2015. In AAT (Migration) Case No.1508758, 5 February 2016, a differently constituted Tribunal set aside the decision of the Department to cancel the subclass 457 visa held by the applicant, a decision which had been made by the Department following the site visit to Spencer College referred to in the decision record cited above.

11. In AAT (Migration) Case No.1508758, the Tribunal referred to the Federal Magistrate’s Court decision in Talukder v Minister for Immigration and Citizenship [2009] FMCA 223; the Federal Court decision in Talukder v Minister for Immigration and Citizenship [2009] FCA 916; and the Federal Circuit Court’s decision in Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280 and noted that its task required an assessment of the quality of the evidence before it to ‘make an assessment as to whether there is evidence that is sufficiently probative’[2] to outweigh the evidence favouring the applicant’s case.

    [2] Sharma at paragraph 25

12. After discussing the evidence before it in detail, the Tribunal concluded:

    47.  In the present matter the Tribunal notes that there is an absence of contemporaneous notes or recording of the site visit interviews on the departmental file. The evidence to the Tribunal in support of the applicant’s case is that a miscommunication occurred during the site visit. The applicant’s evidence includes statutory declarations from staff members and former and current students at Spencer College. The oral evidence at the hearing was presented in a forthright, unhesitating and compelling manner.

    48.  Whilst the Department appears to have some information that indicates that the applicant has gone outside his role as Records Manager and has been involved in teaching students, the way this information has been presented to the Tribunal, cannot reasonably be said to be “evidence” in accordance with the standard imposed by Talukder’s case and Sharma’s case.

    49.  In the Tribunal’s view of the evidence before it, there may have been a miscommunication or misunderstanding between the Departmental officers and the two men interviewed at Spencer College. Had a record of interview and contemporaneous notes of the site visit been provided by the department the Tribunal may have been able to reach a different conclusion. However, the Tribunal is only able to make a decision on the basis of the evidence before it. The Tribunal notes the applicant’s evidence that his work at the college includes direct contact with students, training staff and students in the use of the college’s computer systems, and site visits with students and a teacher to workplace training. After assessing all the evidence the Tribunal is prepared to accept the applicant’s evidence that these activities all relate to the management of the student’s records.

    50.  The Tribunal notes that the applicant has engaged directly with students when teachers have been absent. The Tribunal’s view is that this may fall outside the role of Records Manager. However in considering whether it is a breach of condition 8107 the Tribunal accepts the evidence that this occurred infrequently and that the nature of the applicant’s engagement with the students on these occasions did not involve teaching. The Tribunal notes departmental policy in relation to condition 8107 which states that the condition is breached if the visa holder is working in an occupation that is not associated with an approved nomination. The Tribunal accepts that the applicant’s involvement with students when teachers are absent does not amount to “working in an occupation that is not associated with the approved nomination”. In the Tribunal’s view the infrequent occurrence and the nature of the contact between the applicant and the students on these occasions is not sufficient to amount to a breach of condition 8107 and cancellation of the applicant’s view.

    51.  While the Tribunal has some underlying doubt regarding the extent and nature of the applicant’s role at Spencer College, the Tribunal is unable to be satisfied on the evidence before it that the applicant was involved in teaching and marking student’s assessments. The evidence submitted to the Tribunal in support of the applicant’s claim that he only works as a Records Manager and he does not do any teaching, is compelling. After assessing all the evidence the Tribunal is unable to be satisfied that the ground for cancellation exists.

13. The Tribunal notes that one of the issues of concern to the previous Tribunal in AAT (Migration) Case No.1508758 was that no record of the site visit referred to by the delegate appeared on the departmental file in that matter. In the current matter, the departmental file contains a four page Site Visit Outcome Report dated 16 December 2014 which is said to have been ‘compiled from notes taken contemporaneously during the visit on 15 December 2014 in the official notebook of [officer’s name], pages 62-65’.

14. As the report had not been made available to the applicant, the Tribunal sent a copy to the applicant on 31 January 2017, noting that ‘the report states that the CEO of the College, Mr Gurnam Singh stated that '[Mr Singh's] role was 50% teaching and 50% records management'’, and advising that if this was accepted as correct it would cause the Tribunal to conclude that the requirements of cl.186.212 were not met. The applicant was invited to give comments on or respond to this information in writing.

15. In response to the Tribunal’s letter, the applicant’s representative provided a considerable number of documents, including:

    ·A statutory declaration by the applicant;

    ·An Organisational Chart for Spencer College;

    ·A statutory declaration by Kulwant Singh, Academic Manager, Spencer College;

    ·A statutory declaration by Gurnam Singh, Principal Executive Officer, Spencer College;

    ·A statutory declaration by Kuldeep Dudwal, General Manager, Spencer College;

    ·A statutory declaration by Tejinder Singh, Human Resource Manager, Spencer College;

    ·A statutory declaration by Peter Athey, Trainer and Assessor, Spencer College;

    ·A letter from Alex Morita, Teacher – Food Production, Spencer College;

    ·A statutory declaration by Da Quam Chiam – former student, Spencer College;

    ·A statutory declaration by Jaspreet Kaur, former student, Spencer College;

    ·A statutory declaration by Sokan Oluwasegun Temitope, former student, Spencer College;

    ·A statutory declaration by Pavitterjit Singh, student, Spencer College;

    ·A statutory declaration by Gagandeep Singh, former student, Spencer College;

    ·A statutory declaration by Charn Preet Kaur, former student, Spencer College;

    ·A statutory declaration by Harpreet Singh, former student, Spencer College;

    ·A statutory declaration by Zhang Heyi, former student, Spencer College;

    ·A statutory declaration by Bikramjeet Singh, student, Spencer College;

    ·A statutory declaration by Inderpreet Singh, student, Spencer College;

    ·A statutory declaration by Daljit Singh, student, Spencer College;

    ·A statutory declaration by Ekam Bakshi, former student, Spencer College;

    ·A statutory declaration by Gurpreet Singh Sidhu, former student, Spencer College;

    ·A statutory declaration by Jasanpreet Singh Ghanus, former student, Spencer College;

    ·A statutory declaration by Lakwinder Singh, student, Spencer College;

    ·A statutory declaration by Sukhjiwan Singh Toor, former student, Spencer College;

    ·A statutory declaration by Jugraj Sandhu, student, Spencer College; and

    ·Correspondence between the applicant and various stakeholders.

16. The Tribunal notes that a number of the declarants provided statutory declarations to the previous Tribunal in relation to the applicant’s subclass 457 visa. Several of the declarations provided to the Tribunal from these declarants are copies of those earlier declarations, however the declarations by the applicant, Gurnam Singh, Tejinder Singh, Lakwinder Singh, and Peter Athey are all made in February 2017, while those by Duljit Singh, Ekam Bakshi, Sokan Oluwasegun Temitope, Gurpreet Singh and Sukhjiwan Singh Toor were made in September or October 2016. The Tribunal does not consider it necessary to set out the contents of the various statutory declarations in detail, but notes that each of them states that to the knowledge of the declarant the applicant is, and has been for some years, working as the Records Manager at Spencer College.

17. In his statutory declaration, the applicant sets out in detail his daily responsibilities and tasks at Spencer College. On the basis of the information contained in that statutory declaration, supported and corroborated as it is by the other statutory declarations and letters of support, the Tribunal is satisfied that the nominated position will provide the applicant with the employment referred to the related nomination application.

18. In making that finding, the Tribunal notes that a number of the staff who were present at the visit by the departmental officers in December 2015 have again provided statutory declarations disputing the information contained in the Site Visit Outcome Report. The explanations provided by the declarants are not inherently implausible, and the Tribunal is not satisfied that it should dismiss these sworn declarations on the basis of the information in the Site Visit Outcome Report. Notwithstanding the contents of that report, the Tribunal respectfully agrees with the findings of the previous Tribunal regarding the work actually performed by the applicant.

19. Accordingly, the Tribunal is satisfied that cl.186.212 is met.

20. Given these findings, the appropriate course is to remit the visa applications to the Minister to consider the remaining criteria for the visa.

    DECISION

21. The Tribunal remits the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.212 of Schedule 2 to the Regulations.

    Bruce Henry
    Member