2108762 (Migration)

[2021] AATA 5196

2108762 (Migration) [2021] AATA 5196 (17 December 2021)

AppID: 2108762

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108762

MEMBER:Jason Pennell

DATE:17 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 17 December 2021 at 12.25pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – incorrect information provided in visa application – English proficiency – claim of 5 years of secondary or higher education delivered in English – most education in English but last two years of secondary schooling in Punjabi – discretion to cancel visa – claim that information provided by former agent but responsibility conceded – test scores insufficient to meet alternative requirement – study and work history – value of work to employer during COVID-19 restrictions – shortages of skilled staff – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101(b), 107, 107A, 109(1)

Migration Regulations 1994 (Cth), rr 1.15C, 2.41; Schedule 2, cl 186.222; Schedule 8, visa conditions 8207, 8506

CASE

MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 applicant’s Subclass 186 - Employer Nomination Scheme visa (‘the 186 visa’) under s.109(1) of the Migration Act 1958 (Cth) (the Act).

2.The delegate cancelled the 186 visa on 30 June 2021 the basis that the applicant did not comply with section 101(b) of the Act determining incorrect information was provided on his 186 visa application form about his previous education in India held in the English language.

3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.The applicant appeared before the Tribunal on 17 December 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft (MS) Teams program.

5.The Tribunal also received oral evidence from [Ms A] (Administration & HR Manager of [Company 1]) (the applicant’s employer).

6.The applicant was 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

1. 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.

2. 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.

Applicant’s migration history

1. The applicant was born on [date] in [village], Punjab, India, a village approximately [number] kilometres from Ludhiana. His parents worked as farmers but have now passed away. The applicant has a brother and [sisters]. His brother works as a farmer and his sister are all married. All his siblings continue to live in Punjab, India.

2. The applicant was educated in Punjab India at [a named] Senior Secondary School until year ten (10). He completed his schooling (years eleven (11) and twelve (12)) at [name] Sr Secondary School in Ludhiana.

3. On 17 March 2009 the applicant was granted a student (TU 572) visa to study a Certificate III in [Subject 1] and a Diploma in [Subject 2]. 

4. [In] April 2009 the applicant first arrived in Australia as the holder of that student visa.

5. On 27 April 2011 the applicant lodged a combined partner (UK 820 / BS 801) visa application with [Ms B] listed as his spouse however, this was subsequently refused by the Department on 2 August 2013. The former Migration Review Tribunal affirmed the decision [in] 2014[1]

   [1]    AAT file No [Number 1]

6. On 30 July 2015 the applicant was granted a temporary work (UC 457) visa and was sponsored by [Company 1]. According, to Departmental records, this 457-visa ceased on 30 July 2019[2].

   [2]    Department of Home Affairs - Departmental Movement Records dated 16 December 2021

7. On 24 October 2019 the applicant was subsequently granted an employer nomination scheme (EN 186) visa sponsored again by [Company 1].

8. On 19 May 2021 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) letter giving the applicant an opportunity to respond to the delegate’s findings that he may have provided incorrect information about his previous education in India held in the English language on his 186-visa application form. 

9. On 11 June 2021 the applicant’s representative responded to the NOICC conceding the applicant’s non-compliance with section 101(b) about providing incorrect information about his English language proficiency on his 186-visa application form.

10. The following material was submitted as part of the response to the NOICC[3]:

    ·Legal submissions by [an] Immigration Lawyer dated 11 June 2021

    ·Language Letter of Instruction

    ·Senior Secondary School Certificates

    ·Punjabi School Education Board Certificate

    ·Applicant’s Australian qualifications ([trade] Course, Certificate III in [Subject 3] and Certificate IV in [Subject 3])

    ·Various 2021 news articles about skilled staff shortages in the [Industry 1] sector

    ·Support letter from applicant’s employer ([Company 1]) dated 8 June 2021

    [3]    Department of Home Affairs file [Number 2], DOC ID [Number 3]

11. Upon assessing the applicant’s response, on 30 June 2021 the delegate determined the applicant had not complied with section 101(b) of the Act by providing incorrect information regarding his education in India in the English language in his 186-visa application and by operation of section 107A of the Act, the applicant’s 186 visa was cancelled under section 109 of the Act.

12. On 6 July 2021 the applicant lodged a merits review application resulting in this AAT case number 2108762.

13. The applicant is currently onshore on a Bridging Visa E with attached visa conditions 8207 (no study or training) and 8506 (notify change of address)[4].

    [4]    Department of Home Affairs - Departmental Movement Records dated 16 December 2021

Did the notice comply with the requirements in s 107?

1. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107. Having considered the NOICC provided by the Department to the applicant, the Tribunal is satisfied 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?

1. 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 applicant’s non-compliance identified and particularised in the s 107 notice was non-compliance with section 101(b) regarding incorrect information was provided on his 186-visa application form about his previous education in India held in the English language.

2. The applicant conceded in his response to the NOICC to non-compliance with section 101(b) that incorrect information was provided on his 186-visa application form however, this was a direct result of the applicant’s former migration agent providing incorrect migration advice. The applicant acknowledges it was ultimately his responsibility to ensure correct and accurate answers and information were provided on his 186-visa application form.

3. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) of the Act by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

1. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

2. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances.[5] The prescribed circumstances are set out in reg 2.41 of the Regulations. While prescribed circumstances must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   [5] s 109(1)(b) and (c)

3. The applicant provided the following material to the Tribunal in support of his review application[6]

   i.Copy of the Department’s primary notification letter and decision record dated 30 June 2021

   ii.Legal Submissions by [Immigration Lawyers] dated 10 December 2021 and supporting Annexures including various education documents and certificates, employer’s statement, media articles about [Industry 1 sector] skills shortage, articles about the applicant’s employer ([Company 1]) and applicant’s statement dated 10 December 2021[7] (‘the legal submissions’).

Correct Information

[6]    Tribunal case file 2108762, DOC IDs 8586255 and 8586254

[7]    Tribunal case file 2108762, DOC ID 9218505

1. The applicant by his legal submissions and in his evidence to the Tribunal conceded that incorrect information was provided on his 186-visa application form about his previous education in India held in the English language. However, he claims that this was a direct result of the applicant’s former migration agent. He states that it was not his intention to mislead the Department. Nevertheless, he accepted that he was responsible for the contents of his visa application and the incorrect answers provided.

2. The applicant’s evidence is that he provided the relevant supporting documentation to his former migration agent evidencing he completed his final two years of secondary schooling in Punjabi and the former ten years of primary and secondary schooling in English. Based on the documentation provided by the applicant to the department and the annexures to his legal submissions the Tribunal finds that the applicant completed his final two years of secondary schooling in Punjabi and the former years of primary and secondary schooling in English as claimed. In addition, based on the document’s provided and the applicant’s own evidence the Tribunal accepts that it was not his intention to mislead the Department.

3. The Tribunal places some weight on this consideration in favour of cancelling the applicant’s visa.    

The content of the genuine document (if any)

1. There is no information to suggest that the applicant has submitted any non-genuine document. The Tribunal places no weight in this consideration either for or against the applicant.

Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

1. It was submitted by the applicant that had incorrect answers not been provided on the 186-visa application form about his previous education in India held in the English language then there would have been no other reason for refusing the visa given the 186-visa was ultimately granted.

2. The applicant submits had he not been granted the English language exemption then he would have been required to sit and pass a satisfactory English language test. The reason he did not sit this test was due to incorrect advice given by his former migration agent and not an indication that the applicant did not possess the requisite English language skills as required for the grant of a 186 visa. The applicant submitted that he completed Certificates III and IV in [Subject 3] in April 2015 that supported his level of his English language proficiency.

3. The Tribunal notes that the applicant states in his application form that he had been working for nominated employer for approximately 10 years and that he had obtained a qualification AQF Certificate III in [Subject 3]. In addition, to the question as to whether he has at least functional English language ability the applicant answered ‘yes’.

4. The Tribunal accepts that in-part of the department’s decision would have been based in part on the applicant having answered ‘yes’ to the question in the application form relating to him having studied for at least five (5) years in a secondary or higher education institution where the tuition was delivered in English. However, in circumstances where the applicant was applying for a work visa to be able to continue in a position, he had held with the nominated employer for a period of at least 10 years and that he was proficient in the English language, it is not apparent to the Tribunal that the department had relied on the applicant’s answer to the question relating to him having studied English at a secondary or higher education institution. It appears more likely to the Tribunal that the department would have based its decision on the fact that he was continuing to work in position with the nominated employer he had maintained for the past 10 years. The tribunal places some weight in the applicants favour in relation to this consideration.

The circumstances in which the non-compliance occurred

1. The circumstances in which non-compliance occurred is because the applicant provided incorrect answers about his previous education in India held in the English language in his 186-visa application form as detailed above. The applicant admitted to the non-compliance at the Departmental and Tribunal levels but stated it was a direct result of being given incorrect migration advice from his former migration agent who prepared and lodged the visa application on the applicant’s behalf.

2. The Tribunal notes that in the application the applicant states that he has at least functional English language ability. The applicant provided the Tribunal with copies of his IELTS Test Reports dated 30 August 2008 and 14 March 2015 in which he provided an overall band score of 5.5 and 5 respectively. At the time of the application Reg 186.222 stated that the visa holder must have a competent English to meet the ENS requirements. Specifically, Reg 1.15C requires as and IELTS test score of at least 6 in each test component of speaking reading writing and listening. In circumstances where the applicant had not achieved the appropriate level IELTS score the Tribunal accepts that the applicant’s representative at the time of completing the application may have added his secondary education that is said to have been conducted in English with the vocational courses that he completed in Australia to justify the required the five (5) years tuition delivered in English.

3. Nevertheless, having considered the documents provided by the applicant with the completed visa application form, it appears that the document has been completed by the applicant’s representative at the time in quick and in shoddy manner without little consideration for the consequences to the applicant of proving incorrect information on the application form. The Tribunal places some weight in the applicant’s favour in relation to this consideration

The present circumstances of the visa holder

1. The applicant presently lives and works in Melbourne. Upon being granted his student visa in 2009 the applicant obtained various qualifications in [Subject 1] and [Subject 3] courses. The applicant has worked at the same employer since 2009 and was recently promoted to [job title] at Melbourne’s [Company 1] thus is a valuable member of the Victorian and Australian community.  [Ms A] gave evidence in support of the applicant. Her evidence was that the applicant had worked with the employer for a period of 10 years. He commenced work as a [job role] and has worked his way up within the organisation to the point where is has become a vital member of the organisation. He evidence was that in the current climate in the wake of the Covid -19 lock down it is extremely difficulty to find and keep trained staff. She claimed that it would have an adverse effect on the business if the applicant’s visa was cancelled and he was required to leave the country. The Tribunal places some weight on this consideration in the applicant’s favour. 

The applicant’s subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. The applicant has been co-operative and prompt in all his dealing with the department and the tribunal. The Tribunal gives this consideration little weight in the applicant’s favour.

Any other instances of non-compliance by the visa holder known to the Minister

1. There is no information before the Tribunal concerning any other instances of non-compliance by the applicant. The Tribunal gives this consideration little weight in the applicant’s favour.

The time that has elapsed since the non-compliance

1. The non-compliance occurred when the applicant lodged his 186-visa application on 19 July 2019.  The Tribunal does not consider this a substantial amount of time. The Tribunal gives this consideration little weight in the applicant’s favour.

Any breaches of the law since the non-compliance and the seriousness of those breaches

1. There is no information before the Tribunal to indicate the applicant has breached any Australian laws. The Tribunal gives this consideration little weight in the applicant’s favour.

Any contribution made by the applicant to the community.

1. The applicant’s position is as [an occupation] at a [workplace] known as [Company 1]. In the current circumstances where the Covid-19 pandemic has left the Australian [Industry 1 sector] with staff shortages many [workplaces] are unable to secure skilled [workers]. The applicant’s representative provided various news and media articles about the skilled shortage of essential staff in the [Industry 1] sector.   

2. The evidence of [Ms A] together with a letter of support from his employer stating he has been employed since November 2009 and due to his strong work ethic, they decided to sponsor him for the permanent 186-visa. The evidence of [Ms A] was that due to the pandemic, they are short staffed and are finding it challenging to find new employees.   Her evidence was that his role in the business was essential to the continued operations of the business in the current circumstances.   The Tribunal places considerable weight on this consideration in favour of the applicant.     

Consequential cancellations under s 140

1. There is no evidence that any person’s visa would, or may, be consequentially cancelled under section 140 of the Act. The Tribunal gives this consideration no weight.

Any breach of international obligations Australia may have because of the applicant’s visa being cancelled

1. There is no information before the Tribunal concerning any breaches of Australia’s international obligations should the applicant’s visa be cancelled. The Tribunal gives this consideration no weight.

Mandatory legal consequences

1. If the applicant’s visa is cancelled, the applicant may become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition, the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for a further visa whilst in Australia. The applicant will be subject to Public Interest Criteria 4013 because of the visa cancellation. However, the applicant will be entitled to apply for a Bridging Visa E to remain lawfully in Australia when finalising his departure arrangements. The Tribunal gives this consideration no weight.

Other relevant considerations

1. The Tribunal is not aware of any other relevant matters that require consideration / There are no other relevant matters that require consideration.

2. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

8. Decision 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.

9. Cancellation 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.