VECHOOPARAMBIL KURIAN (Migration)

[2018] AATA 4179

VECHOOPARAMBIL KURIAN (Migration) [2018] AATA 4179 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROBICHEN VECHOOPARAMBIL KURIAN

CASE NUMBER:  1716803

HOME AFFAIRS REFERENCE(S):           BCC2017/1305888

MEMBER:John Cipolla

DATE:10 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 September 2018 at 9:40am

CATCHWORDS
MIGRATION – Cancellation – Temporary Business  Entry (Class UC) visa – Subclass 457 (Temporary Worked {Skilled) – restaurant manager – work inordinate hours –underpaid – duties beyond position – genuine intention to perform occupation – first employer’s unsupported allegations – threatened by employer – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the delegate determined that a prescribed ground for cancellation of the applicants Subclass 457 visa existed under regulation 2.43. The prescribed ground identified by the delegate was regulation 2.43(1)(kb). 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 appeared before the Tribunal on 6 September 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.  However the applicant advised he was comfortable to converse in English and he agreed to defer to the interpreter as required. The initial introductory comments of the Tribunal were made with the assistance of the interpreter.

4. The applicant was represented in relation to the review by his registered migration agent.

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.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(g) r.2.43(1)(kb). 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?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb) is relevant.

8. Regulation 2.43(1)(kb) states that:

   (kb) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of sub regulation 457.223(4) that, despite the grant of the visa, the Minister is satisfied that:

   (i)the holder has ceased to have a genuine intention to perform that occupation; or

   (ii)the position associated with the nominated occupation is not genuine.

9. In response to the Notice of Intention to Consider Cancellation (NOICC) of his visa, dated 2 June 2017, the applicant provided a comprehensive submission dated 28 June 2017. The Tribunal has had regard to this submission. The submission notes that the sponsoring business that initially sponsored the applicant to Australia to work in the business as a Café/Restaurant Manager had the applicant working more than 65 hours per week commencing most days at 9 AM and completing a shift at midnight for six days a week. In addition to this the applicant’s employer advised the applicant that they would assist him with a pathway to permanent residency if he worked more hours and paid his employer $50,000 which the applicant was required to regularly deposit into the sponsoring employer’s bank account. Although the applicant had been employed to work as a Café/Restaurant Manager he was asked to work as a Kitchen Hand and Chef and the applicant was threatened by his employer that if he failed to comply with these demands his employer would proceed to have the applicant’s visa cancelled. The applicant advised that during the two years and four months that he worked for this employer he resided with the employer at her home in Auburn. The applicant noted that this employer, after he left employment, made a number of unsubstantiated and untrue allegations against him and the applicant’s submission in response to the NOICC addresses those allegations one by one. The applicant also noted that at the time he ceased employment with this sponsoring employer he was owed annual leave and other entitlements.

10. The submission notes that the applicant successfully sought, within the requisite 90 day period, a second sponsoring employer to work in the position of Café/Restaurant Manager. The applicant claims in his submission that he worked for the new employer for one week in the nominated occupation.  The applicant came to learn that his former employer and his second sponsoring employer knew one another.  The applicant states that the first sponsoring employer contacted the second employer and made disparaging comments about the applicant. The applicant claims that the first sponsoring employer advised the second sponsoring employer that he was going to register a complaint against the applicant with the police at which time the second sponsoring employer advised the applicant that he did not want to be involved with him and told the applicant that he should find a new employer. The submission notes that the applicant then found another sponsoring employer within the requisite 90 day period who lodged an application to sponsor the applicant, but that employer’s nomination application was refused by the Department.

11. The Tribunal at the review hearing discussed in detail with the applicant his immigration history in Australia. The applicant advised the Tribunal that he completed high school in India after which he completed a Bachelor of Hotel Management at a university in Tamil Nadu.  The applicant advised that he managed restaurants in India and had direct experience as a Cafe/Restaurant Manager.

12. The applicant advised the Tribunal that when he arrived in Australia in December 2013, as the holder of a Subclass 457 visa his visa was valid until December 2017. The applicant stated that he immediately commenced work for the nominating business, which was an Indian restaurant, located in Wentworthville. The applicant stated that he resided with his employer at Auburn and that his employer forced him to work up to 75 hours per week. The applicant stated that his employer made him work initially as a Kitchen Hand and later as a Cook and that his employer threatened that if the applicant did not comply with these demands that his visa would be cancelled. The applicant stated that he was not properly remunerated during the 2 years and 4 month period that he worked for this sponsoring employer. The applicant advised the Tribunal that as a consequence of the punitive conditions that he had to endure in this employment that he found another business, another Indian restaurant willing and able to sponsor him, based in Pennant Hills. The applicant advised the Tribunal that he commenced employment with his second employer after their sponsorship was approved in April 2016 and commenced work for this employer as a Café/Restaurant Manager.  The applicant stated that it came to his knowledge that his first sponsoring business was acquainted with his second sponsor, and that the first sponsor contacted the second sponsor, to advise that he was making a formal complaint about the applicant.  As a consequence the second sponsoring employer notified the Department to advise them that the applicant had not commenced work for them. The applicant refuted this saying that he worked for the second sponsoring business for a week in the nominated position, however after the phone interaction with the applicant’s previous employer, the second sponsoring business, notified the Department that the applicant had not commenced work. The Tribunal asked the applicant how he had knowledge of contact between the first and second sponsoring employers and he advised that he was aware of it through his second sponsors work phone records.

13. The Tribunal notes that the cancellation of the applicant’s visa has been predicated on the prescribed grounds in regulation 2.43(1)(kb).  Those grounds as noted above require that:

    in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of sub regulation 457.223(4) that, despite the grant of the visa, the Minister is satisfied that:

    the holder has ceased to have a genuine intention to perform that occupation; or

    the position associated with the nominated occupation is not genuine.

14. The evidence before the Tribunal indicates that the applicant had an undergraduate qualification and direct work experience as a Café/Restaurant Manager in India prior to his arrival in Australia and the evidence indicates that the applicant fully expected to be working for in the occupation of Café/Restaurant Manager. The evidence indicates that the applicant was sponsored by his first sponsor to work in this occupation in their Indian restaurant located in Wentworthville. The evidence indicates that what transpired was that the applicant over the 26 months that he worked for this business was forced to work as directed by the sponsor, to work inordinate hours in breach of his contract of employment, to be underpaid, and that he was forced to perform duties that did not correspond to the tasks of the nominated position of Café/Restaurant Manager. The evidence before the Tribunal indicates that the applicant’s first sponsor threatened to initiate the cancellation of his visa if he failed to comply with their demands. The applicant has provided a consistent account of these circumstances to the Department in response to the NOICC and to the Tribunal at review.

15. As a consequence of the poor employment circumstances that the applicant found himself in, he pursued a second sponsoring business, they were also approved to sponsor the applicant in the position of Café/Restaurant Manager. The evidence indicates that the applicant commenced work with the second sponsoring employer and that he found this position within 90 days of ceasing employment with the first sponsoring employer. The evidence before the Tribunal indicates that the applicant worked for the second sponsoring employer for a one week period.  The evidence before the Tribunal indicates that the second nomination was approved on 18 April 2016 with the applicant commencing work on 26 April 2016 until 5 May 2016. The applicant was then advised by his employer to take leave until 1 July 2016 whilst the restaurant underwent renovations. The applicant was requested by the sponsor to design and develop new menus whilst on leave prior to the reopening of the business. The evidence indicates that the applicant made every attempt to work in this occupation/position. The evidence indicates that by July 2016 the applicant was advised by his second sponsoring employer that his services were being terminated and as has been noted the applicant came to learn that this termination was precipitated by contact between the first sponsoring business and the second sponsoring business and unsubstantiated adverse allegations being directed at the applicant by his first employer. The applicant has pursued separate actions against the first employer with Fair Work Australia and the Commonwealth Ombudsman’s Office.

16. The Tribunal having regard to these circumstances finds that the applicant did not cease to have a genuine intention to perform the occupation and that he was constrained and prevented in the circumstances by the first and second employers to do so. Further to this the evidence before the Tribunal indicates that the position associated with the nominated occupation of Café/Restaurant Manager were both genuine positions in Indian Restaurants located in Sydney. The evidence indicates that in the first position of employment the applicant was the subject of unscrupulous employers, and the evidence suggests that they abused the applicant during the 26 months that he maintained employment with them. The evidence indicates that the applicant’s employment with his second sponsoring business was sullied by adverse communication between the first sponsoring business and second sponsoring business that led to the applicant services being terminated. The evidence before the Tribunal indicates that the applicant then pursued a third sponsorship, however that sponsorship was refused by the Department of Immigration on 30 March 2017.

17. The Tribunal finds, having regard to the evidence before it, that the prescribed grounds for cancellation of the applicant’s visa under regulation 2.43(1)(kb) have not been satisfied.

18. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    John Cipolla
    Senior Member