2113572 (Migration) - [2022] AATA 2657

2113572 (Migration) [2022] AATA 2657 (10 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Miss Di Sun
CASE NUMBER: 2113572

MEMBER:Alan McMurran
DATE:10 February 2022
PLACE OF DECISION: Sydney
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 10 February 2022 at 2:58pm

This is an application lodged 5 October 2021 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 under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the Peoples’ Republic of China. On 19 October 2017 the applicant had applied for a Subclass 186 permanent residency visa (“the visa”) as a secondary applicant and member of the family unit of the primary applicant. The visa was granted on 19 March 2018.
On 29 September 2021 the delegate cancelled the visa on the basis that the delegate did not accept that the applicant had been living in a genuine de facto relationship with the primary applicant. The delegate found the applicant had provided a false address as the place of residence during the relationship, and bogus documents to the Department in the form of altered bank statements. The delegate found the applicant was motivated to demonstrate her relationship with the de facto in order to obtain the visa.
On 8 February 2021 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The hearing was conducted virtually using MS Teams and in accordance with the Tribunal’s COVID-19 Practice Direction for providing a mechanism of review that is fair, just, economical, informal, and quick. The applicant indicated she was willing to proceed, having provided all relevant information. The applicant was represented in relation to the review by her solicitor.
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
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 2657
Decision Date: 10 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 186 Employer Nomination Scheme visa held by the applicant. The dispute arose from allegations that the applicant had provided incorrect answers in her visa application and submitted a bogus document, specifically altered bank statements showing an incorrect residential address. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) based on alleged non-compliance with sections 101 and 103 of the Migration Act 1958.

The Tribunal was required to determine whether the NOICC was valid, whether the applicant had indeed failed to comply with the specified provisions of the Act, and if so, whether the visa should be cancelled. The core legal issues revolved around the interpretation and application of sections 101 (incorrect answers) and 103 (bogus documents) of the Migration Act, and the procedural requirements under section 107 for issuing a valid notice of intention to cancel a visa. The Tribunal also considered the discretionary nature of visa cancellation, even where non-compliance is established, and the factors that should be weighed in exercising that discretion.

The Tribunal found that while the NOICC contained sufficient particulars to identify the alleged non-compliance, it ultimately set aside the cancellation decision. Although the Tribunal was satisfied that the applicant had technically breached sections 101 and 103, it concluded that the applicant was not complicit in the non-compliance. The evidence indicated that the incorrect information and altered documents were provided by the primary applicant without the applicant's knowledge or consent. The Tribunal gave significant weight to the applicant's serious health conditions, including suicidal ideation, the substantial impact cancellation would have on her and her Australian citizen children, her lengthy history in Australia without other compliance issues, and her remorse. These factors, combined with the delay in the Department's action and the applicant's lack of complicity, led the Tribunal to exercise its discretion not to cancel the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. The Tribunal has had regard to the information in the Department’s file, together with the additional information and submissions made to the Tribunal. The Tribunal has also had regard to the oral evidence from questioning the applicant, Department Policy (PAM 3) and the Act and Regulations. The review involves several steps. Firstly, consideration of the issue of compliance with s.107 and validity of the notice; secondly, whether there was non-compliance as described in the notice; and thirdly, if there was non-compliance, whether the visa should be cancelled. The third step involves the exercise of discretion, it not being mandatory to cancel the visa even where the Tribunal is satisfied that there was non-compliance. Is the Notice compliant with s.107? S.107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one or other of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. Relevantly in the present case, s.107(1) requires the Minister to consider whether the visa holder has complied with s.101[1] and s.103 [2].[1] no incorrect answers are given or provided;[2] not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented, produced, or provided On 28 July 2021, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) under s.107, also referred to in these reasons simply as the ‘notice’. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The NOICC provided particulars of non-compliance with s.101(b) (incorrect answers) and s.103 (altered bank statements showing a different residential address).

Decision

Reasons for decision

The Tribunal has also taken into account the serious delay between the conduct giving rise to the cancellation in 2017 and the Department’s advice concerning its forensic examination in 2021. There is no doubt such delay has exacerbated the applicant’s personal and financial circumstances, in part due to the pandemic, but also due to the applicant’s re-partnering and subsequent marriage, the birth of her child and further pregnancy during this period. The Tribunal is satisfied on the evidence that the applicant’s present state of physical and mental health is attributable primarily to the birth of her first child and diagnosis of postnatal depression, which occurred prior to the cancellation decision, and which may have been exacerbated following that decision. The Tribunal finds it is a matter which merits consideration and gives this consideration some weight.Conclusion The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.103 and that there are grounds for cancelling her visa. The Tribunal has also found that there was another instance of non-compliance as the applicant had completed her application form in a way that incorrect answers were given or provided, in breach of s.101 of the Act. Generally, the Tribunal accepts that there are factors that weigh against the cancellation. The Tribunal has formed the view that the cancellation of the visa would not lead to a breach of Australia’s international obligations and would not adversely affect the best interests of any children. In the circumstances of this case, the Tribunal has decided to place less weight on the circumstances in which the non-compliance occurred than other factors. This is because the Tribunal is satisfied and has accepted on the evidence that the applicant was not complicit in the non-compliance, and herself provided the correct information, which was fraudulently altered without her knowledge or consent by the primary applicant, and but for that, entitled the applicant to the visa where she had otherwise met the relevant criteria. The Tribunal finds that the applicant has worked conscientiously in her business and supported the Australian community through her [business 2], unaware until the NOICC of any non-compliance on her part. The applicant has serious health conditions including diagnosed suicidal ideation. The applicant and her children will be seriously impacted by the cancellation. The applicant has a lengthy history in Australia with no evidence of any other non-compliance issues, and the Tribunal has found that the applicant was not complicit in any fraud or contravention of the Act. The applicant has candidly accepted her responsibility and expressed her dismay and remorse. The Tribunal has decided that such circumstances should be given greater weight and outweigh other factors that support the cancellation. Having considered the available factors and information cumulatively and separately, overall, the Tribunal has decided that the visa should not be cancelled.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.Alan McMurranMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).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‑complianceThe 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.