Singh (Migration)

[2022] AATA 4763

Singh (Migration) [2022] AATA 4763 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pervinder Singh
Mrs Mandeep Kiran
Miss Arpita Singh
Miss Ayesha Singh
Miss Alina Singh

REPRESENTATIVE:  Mrs Natalia Paliy

CASE NUMBER:  2207870

HOME AFFAIRS REFERENCE(S):          BCC2018/4084454

MEMBER:Noelle Hossen

DATE:12 October 2022

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 457 (Temporary Work (Skilled)) visa.

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

Statement made on 12 October 2022 at 3:47pm

CATCHWORDS  
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit and Family Court remittal – ground for cancellation – non-commencement of employment – ABF investigation – payslips – notice of assessment – decision under review set aside

LEGISLATION 
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 7 December 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the first named applicant has not complied with condition 8107(3)(aa)(I) of condition 8107( attached to his visa) which states in part that” if the holder was in Australia when the visa was granted commence work within 90 days after the holders Visa was granted.” 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 under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ 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 which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to them.

4. On the 26 May 2022 the Federal Circuit Court and Family Court of Australia (Division 2) At Melbourne ordered as follows:

   1)A writ in the nature of Certiorari issue directed to the second respondent quashing its decision dated 1 February 2019 (AAT case number 1900538).

   2)A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made by the applicants on 8 January 2019.

   3)The first respondent pay the applicants such costs as they are entitled to as self-represented litigants.

5. The applicants appeared before the Tribunal on the 10 October 2022 to give evidence and present arguments.

6. The applicants were represented in relation to the review.

7. 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

8. 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?

   s 116(1)(b) - non-compliance with conditions

9. A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition8107 (3) (aa)(i) attached to the applicant’s visa. This condition requires that if the holder was in Australia when the Visa was granted he is to commence work within 90 days after the holders Visa was granted.

10. In the Delegate’s Decision it is stated as follows:

    “The standard business sponsor who nominated the Visa holder in the most recently approved nomination for the visa is JSD Victoria Pty Ltd. (the sponsor), whose nomination was approved on 13 February 2017. The Visa holder was nominated in the occupation of Café or Restaurant Manager(Australian and New Zealand Standard Classification of occupations ANZSCO 141111).

    Café or Restaurant Manager (ANZSCO 141111) listed in that nomination is not one specified in the relevant instrument referred to in subclause 8107(3A) to exempt the Visa holder from having to comply with the requirements of subclause 8107(3) ( a)- therefore while the Visa holder continues to hold the 457 Visa you can only lawfully work in Australia  for either the sponsor or an associated entity of the sponsor.

    On 9 March 2017 the Visa holder was granted a Temporary Skilled (Subclass 457) Visa onshore. On 23 July 2018 the Department received information from the Australian Border Force Sponsor Monitoring unit (SMU) that the Visa holder has not commenced employment with the sponsor.

    Information available to the Department shows that the Visa holder has remained in Australia without commencing employment with the sponsor, which has been more than 90 consecutive days.

    No further correspondence sent from the sponsor indicating that the Visa holder commenced employment with the sponsor within 90 days of the grant of the Visa holders’(subclass 457) Visa.

    This indicates that the Visa holder has not complied with subclause 8107(3) (aa) (ii) of condition 8107 attached to his Visa because it appears the Visa holder has not commenced working with the sponsor within 90 days after the grant of the Visa.”

11. The applicant through his representative provided extensive submissions in writing with 24 documents attached being:

    Statutory Declaration dated 5 October 2022 of the first named applicant

    457 grant notifications dated 18^th of May 2015 and 9 March 2017

    Bridging E Visa

    Diploma of Management

    Skills Assessment café or restaurant manager

    Notice of Assessment from the Australian Taxation office dated 30^th of June 2016, 2017 and 2018

    Records of payment to superannuation account 2016 and 2017

    2 letters of support

    3 Birth Certificates of his daughters

    School enrolment letter

    Australian citizenship Certificate for his daughter Arpita Singh

    Australian passport of Arpita Singh

    Acceptance to Keysborough Secondary College by his daughter

    3, Star of the week awards for his daughters

    Letter from a medical practitioner dated 23 February 2022 of Ayesha Singh

12. The submissions set out that the first named applicant and his wife arrived in Australia on a Student Visa in late 2009. After the completion of the studies the first named applicant applied for a Graduate Visa which was unsuccessful, and the applicant appealed the decision.

13. While the applicant waited for his appeal to be considered he completed a Diploma of Management and commenced working at Rosenhart cake shop namely JSD Victoria Pty Ltd as an assistant manager. The business subsequently promoted the applicant to manager and sponsored him for a 482 Visa.

14. On 22 October 2018 the applicant received Notice of Intention to Consider Cancellation of his 457 Visa and on 7 December 2018 his Visa was cancelled. The first named applicant’s family’s visas were automatically cancelled as a consequence of that cancellation by force of the operation of section 140 (a) of the act.

15. The applicant has a wife and 3 children who were born and raised in Australia. His eldest daughter is an Australian citizen as her parents applied for Australian citizenship after her 10^th birthday because she was born in Australia and had lived in Australia for 10 years.

16. The first named applicant indicated that if the visa was cancelled his daughter Arpita would remain in Australia as she is an Australian citizen who only speaks English. She would remain with his brother who has been looking after the family for the last 4 years whilst the family have been waiting for the appeal to be heard as the Bridging Visa did not allow the first named applicant or his wife to work.

17. The first named applicant and his wife have complied with their Visa obligations whilst waiting for the appeal process to take place.

18. In the Delegate’s Decision it is stated as follows:

19. ” In response to the NOICC the Visa holder and his authorised agent stated the following:

    The departmental records is incorrect about the employment record of client Mr Pervinder Singh have started working 90 days from grant of 457 Visa. The applicant was continuously working, since grant of Visa and has ceased working in May 2018. Meanwhile the employer has recruited new team whom the immigration officer have interviewed and the client was ignorant of the changes in the business. The new team members were not aware about the applicant as they were hired only before 1 week. Mr Pervinder was continuously intimated that business will start with the new management and structure change very soon.

    The applicant took one-month annual leave and then unpaid leave as the employer informed change of Business structure was still in process when Mr Pervinder went back after completing annual leave. He was not informed about cancellation of sponsorship until he received email on 22 October 2018

    According to Migration Regulations 1998 Mr Pervinder Singh have complied with 8107(3)(b) and was continuously working with Rosenhart Bakery until May 2018 and thereby fulfils the purpose for which the Visa was granted. According to law, it is an employer’s duty to inform DIBP in 28 days about change of business structure. The breach of regulation 2.84 has significant impact on per vendor who is unaware about breach of sponsorship obligations by employer. According to Pervinder he was legitimately working in legalities of sponsorship agreement was not bridging Visa condition……”

20. 1^st named applicant had provided to the Department a copy of PA YG’s payment summary for year ending 30^th of June 2016 and 2017. He had prop provided a copy of payslips paid by JSD Victoria proprietor limited from 6 July 2015 to 25^th of June 2018.

21. The Delegate of the Department found that:” I have considered the letter of employment reference signed by the Director of the business on 4 June 2016. I note departmental records indicating during the investigation undertaken by the ABF against the sponsor the sponsor was invited to comment on the ABF officer’s concerns regarding the Visa holder’s employment status. However, the sponsor did not provide any response or any evidence showing that the Visa holder had been working for the sponsor or verifying the Visa holder’s employment with them. Therefore, I find the letter of employment reference not creditable.

    While I have taken into account the Visa holder’s claims regarding the incorrect information provided by the sponsor’s newly recruited staff the Department’s records show that during the site visit to the sponsor nominated business location on 9^th of May 2018, the ABF officers interviewed several long-term, full-time employees of the business. All of these staff had never heard that Pervinder Singh (the Visa holder) had worked for the business. Therefore, I consider the information from the investigation conducted by the ABF is reliable

    The Visa holder also submitted a copy of his payslips from 6 July 2015 to 25^th of June 2018 and PAYG year ending 2016 and 2017. I note that these documents are not official tax documents from Australian tax office.

22. The Tribunal has sighted copies of the notice of assessments for the year ending 30 June 2018 from the Australian Taxation Office which shows the taxable income of the first named applicant was $52,716. The Tribunal accepts the evidence of the applicant based on the information that he has supplied as his tax assessments correlate with his payslips. The applicant was working for his nominated employer and had commenced employment within the time limit after his Visa was granted.

23. However, he says that he was deceived by his previous employers who made him take his paid leave thereafter and that he considered that he was still employed.

24. He provided a letter to the Tribunal setting out that he had been offered a job as a café manager with reasonable remuneration.

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

    decision

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Noelle Hossen
    Member