ALI (Migration) - [2019] AATA 992

ALI (Migration) [2019] AATA 992 (11 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MUHAMMAD RIZWAN ALI
CASE NUMBER:  1816368
DIBP REFERENCE(S):  BCC2017/1111732
MEMBER:Alan McMurran
DATE:11 January 2019
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 11 January 2019 at 12:28pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination Scheme visa– Subclass 186 – bogus document in the form of employment history – cancellation notice is not valid – the hotel existed at the relevant time – Employer’s Certificate as to service by the visa holder was in fact correct – Employer Certificate was not a bogus document– Decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109
Migration Regulations 1994, rr 1.15, 2.41
CASES
Zhong v Minister for Immigration and Citizenship [2008] FCA 507

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that claims the applicant had been employed as a cafe and restaurant manager in Pakistan were incorrect and documents provided in support of that claim were bogus.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the former employer, a representative named Almas Akram. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent. The Tribunal had available material in considering this review including the Tribunal’s file, the Department’s file[1] , and the oral evidence from the hearing, and information from a variety of sources provided by the applicant including written submissions from the representative.
[1] BCC2017/1111732
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Background
The applicant is a 38-year-old citizen of Pakistan. The applicant came to Australia as a student in March 2010 and was granted a 457 visa to work as a cafe or restaurant manager on 15 August 2013.
The visa was granted on the basis of information provided by the applicant, including information about his previous work history in Pakistan.
On 27 February 2017, the applicant was granted an ENS subclass 186 visa, again based on his prior work history,…

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

AGLC: ALI (Migration) [2019] AATA 992
Case: [2019] AATA 992
Decision Date: 11 January 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the visa of an applicant, a citizen of Pakistan. The applicant had been granted a Subclass 186 Employer Nomination Scheme visa in February 2017, which was later cancelled on the grounds that he had provided incorrect information regarding his previous employment history and had submitted a bogus document. The dispute centred on the existence and operational status of the "Lasani Hotel Restaurant and Marriage Hall" in Pakistan, where the applicant claimed to have worked as a manager between 2003 and 2007, a period crucial for meeting the visa requirements.

The Tribunal was required to determine whether the applicant had provided incorrect answers to questions in his visa application, thereby breaching section 101(b) of the Migration Act 1958, and whether he had provided a bogus document, contravening section 103 of the Act. Specifically, the court needed to ascertain if the Lasani Hotel Restaurant and Marriage Hall existed and was operational during the claimed period of employment, and if the employment reference provided by the applicant was therefore a bogus document. The validity of the cancellation notice itself was also implicitly in question, as the exercise of cancellation powers under section 109 is conditional on the issuance of a valid notice.

The Tribunal found that the Department's cancellation notice was not valid because it failed to provide sufficient particulars of the evidence upon which it relied to conclude that the hotel did not exist. While the Department's post in Islamabad had initially reported an inability to verify the business's existence, subsequent evidence, including an affidavit from a former employee and a telephone conversation with that individual, confirmed that the Lasani Hotel did exist and was operational in 2003. Furthermore, the Tribunal considered evidence that the business had ceased operations in 2015, which did not negate its existence during the applicant's claimed period of employment. The Tribunal concluded that the applicant's employment history, as supported by the evidence, was not incorrect and the employer's certificate was not a bogus document.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 186 visa. The Tribunal found that the applicant had not breached the relevant provisions of the Migration Act by providing incorrect information or a bogus document, and therefore the grounds for cancellation were not established.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. Background The applicant is a 38-year-old citizen of Pakistan. The applicant came to Australia as a student in March 2010 and was granted a 457 visa to work as a cafe or restaurant manager on 15 August 2013. The visa was granted on the basis of information provided by the applicant, including information about his previous work history in Pakistan. On 27 February 2017, the applicant was granted an ENS subclass 186 visa, again based on his prior work history, including the work history obtained and accepted for the subclass 457 visa. In the information obtained from the applicant, he claimed to have been working in Pakistan as a hotel manager for the period from 2003 to 2007. This was supported by a written employer statement (undated) provided with the application. On 26 July 2017, the Department requested employment verification on the applicant’s job role at the Lasani Hotel Restaurant and Marriage Hall from its post in Islamabad. On 16 August 2017, the post was asked to check business registration records for the previous employer, Lasani Hotel Restaurant and Marriage Hall and advise the date the business commenced and/or ceased, and to check business registration in accordance with telephone bills provided, and attempt to contact Muhammad Usman Ashraf (the writer of the applicant’s work statement) at a given number. On 25 August 2017, the Department issued a Notice of Intention to Consider Cancellation (NOICC) which was sent to the applicant. The NOICC provided particulars that the Department “has evidence that Lasani Hotel, Restaurant and Marriage Hall, as you have indicated in your resume and an Experience Certificate, does and did not exist.” The NOICC duly sets out:·relevant provisions from the Act, ·a summary of the evidence provided by the applicant with his application for the 457 visa, ·a statement that the Department “has evidence that Lasani Hotel, Restaurant & Marriage Hall as you have indicated in your resume and experience certificate, does and did not exist”·consideration that the applicant had provided incorrect information and a bogus document·Particulars of possible non-compliance “because you have provided incorrect answers” and “and an experience certificate” which the delegate regarded as incorrect because that experience was based upon a hotel and restaurant which “does and did not exist”. The NOICC does not describe or provide details of the “evidence” upon which it relies to show the hotel and restaurant does and did not exist. A review of the Department’s file[2] shows that at the time of issue of the notice on 25 August 2017, the best information available to the Department was contained in an email from the post in Islamabad dated 16 August 2017, which concluded that “based on the information above the referral is closed as un able to verify”. [2] ff 6-8 On 8 September 2017, an agent for the applicant responded to the NOICC. The response advised the Department that:“The Lasani Hotel has stopped its operations since 15/07/2015 when the owner has left for Dubai.Lasani hotel has always existed and applicant has worked there as a restaurant manager however we assume that scope raised by the Department states that the business under discussion never existed.The delegate did not mention as to how the Department has come to the above-stated conclusion. Even a simple search on Google could have verified the existence of Hotel Lasani.”

Evidence

Evidence Before The Court

On 5 June 2018, the applicant lodged this application for review.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, and 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. At the hearing, the applicant was asked questions about the information he had provided in response to the NOICC. The applicant told the hearing he had provided whatever information was available in 2018 to show that the restaurant had existed in 2003. The applicant said that he had been in Australia since 2010 and did not know that the restaurant had closed or that the owner had left. He said he only learnt about the NOICC in August 2017 and that was when he commenced making his own enquiries in order to respond to it. He said because of the 15 years that had elapsed since he had started working there, it was difficult for him to provide any records at all. He was asked about the affidavit evidence recently presented by Mr Muhammad Usman Ashraf on 9 August 2018, and from Almas Akram on 27 July 2018. The Tribunal had a telephone conversation with Mr Almas Akram, who was contacted in Pakistan from the hearing room. Mr Akram said he had prepared his statement and that it was true. He said he had been asked to prepare it by the applicant’s brother whom he knew. He confirmed in his oral statement that the applicant was “the Ali” who had applied for a job in 2003 and he had started for a few weeks on trial as a “manager”. He confirmed that the restaurant and hotel was then trading and the applicant had been working at that location in Toba Tek Singh. The Tribunal put to the witness that the hotel did not exist in 2003, or since. The witness said the hotel did exist in 2003. The Tribunal asked the witness about communicating with him by telephone in 2017. The witness said he had 4 or 5 telephones at that time and that it would be possible to find him when in Pakistan on one of those phone numbers. He said that his number was available as a public record, in the event someone was trying to locate him or talk to him. He had not spoken to anyone from the Department. The statement from Mr Akram confirms the Lasani Hotel exists or existed in 2003 until 2007. This statement identifies the applicant and confirmed his role as manager in that period. The Tribunal finds no reason to disbelieve or discredit that evidence given on oath, having spoken directly with the deponent. He also confirmed the address in Toba Tek Singh, which was the area identified by the telephone numbers used by the Department’s post in carrying out the integrity check.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 12 October 2017, the post in Islamabad responded as follows:“As per provided FBR document the business is registered from 09/01/2014 and it does show that Mr Muhammad Usman Ashraf is the owner of the hotel. (FBR’s website screenshot is attached with the email). But PA has worked there from 2003 to 2007.It is not possible for us to find out if the business is operational or not without a site visit and due to lack of financials, post is not conducting any site visits lately.I also have checked with Pakistan Telecommunication Authority (PTCL) and they have confirmed that number 046-2511358 is registered as a residential number and as per PTCL policy they can’t disclose the name and address of the owner if the number is a residential number. Same goes for the number 046-2518058.The one thing I would like to mention here is that, though PTCL didn’t provided the address of the numbers owner they did confirmed that phone number 046-2518058 and 046-2511358 are registered with different address.I hope this clears the picture even more.Regards Muslim Habibi” (emphasis added) On 31 May 2018 the Department cancelled the applicant’s ENS subclass 186 visa granted 27 February 2017. The applicant was provided with a Record of the Decision which concluded that information provided by the applicant in his application form for the 457 visa about his former employment was incorrect, in breach of section 101 (b) of the Act, which requires that no incorrect answers are to be given to questions in the application form. The notice also informed the applicant that he had provided a bogus document being an employment reference which was relied upon on 4 May 2013 when the applicant lodged his application for the 457 visa. In the decision, the delegate noted as follows:“Evidence of non-compliance:On 04 May 2013 the visa holder lodged an application for a temporary work (skilled) (subclass 457) visa.The visa holder applied in the nominated occupation of Cafe or restaurant manager. Under regulation 457.223 (4) (da) (from August 2013 Migration Regulations) the applicant is required to demonstrate that they have the required skills, qualifications or employment background to perform the nominated occupation. In this case the visa holder was required to demonstrate that he had a minimum of 3 years’ work experience undertaking the role of the Cafe or restaurant managerOn the visa application form non-stay temporary business visa-record of responses in the section entitled position details-details of your qualifications, training and skills relevant to your proposed activity in Australia, the visa holder provided the following answers:Educational qualifications: “please see attached”Trade or professional qualifications: “please see attached”Training (including on the job training): “please see attached”The documents submitted with the visa holder’s application included a certificate of completion of a diploma of business administration from the Australian College of vocational studies, a resume, and an employment reference.The employment reference for the Lasani Hotel, Restaurant & Marriage Hall in Pakistan stated that the visa holder worked as a restaurant manager from February 2003 to August 2007.On the basis of the information provided as part of the visa holders temporary work (skilled) (UC 457) visa application, including the documentation provided in relation to his work experience, and meeting all other relevant criteria, the delegate granted the visa on 15 August 2013.On 16 August 2017 the Department conducted an integrity check in regard to the visa holder’s employment reference in the employment information as stated in his resume. The result of the integrity check was that the Lasani Hotel and restaurant did not appear to exist.Given the apparent lack of evidence that this business existed, a delegate sent the visa holder a notice of intention to consider cancellation (NOICC) of his visa under section 109 for breach of section 101 (b) for incorrect answers provided in regard to his employment history on his resume, and for a breach of section 103 for providing to the Department what appeared to be a bogus document in the form of an employment reference from the Lasani Hotel.”(emphasis added)