Awais (Migration)

[2022] AATA 2303

Awais (Migration) [2022] AATA 2303 (3 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Awais

REPRESENTATIVE:  Mr Michael McCrudden (MARN: 0429447)

CASE NUMBER:  2012735

HOME AFFAIRS REFERENCE(S):          BCC2018/5272970

MEMBER:Kate Millar

DATE:3 May 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 03 May 2022 at 3:20pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – ground for cancellation – fact or circumstance for visa grant did not exist – whether nomination was withdrawn at time of visa grant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Awais first came to Australia from Pakistan as a student in 2014 and obtained a Master of Professional Accounting in 2016.  He then held a skilled graduate visa from 2016 to 2018.

2. On 1 August 2018 he applied for a Subclass 489 - Skilled - Regional (Provisional) visa on the basis that he was sponsored by the Northern Territory Government, and his visa was granted 26 October 2018.  In the normal course of events this visa would cease 4 years after it was granted. 

3. On 25 October 2018, the NT Government contacted the Department about its nomination of Mr Awais.  The effect of this contacted is disputed, however the Department took this as a notification that the NT Government was withdrawing its sponsorship and cancelled Mr Awais’ visa on the basis that the decision to grant the visa was based on the existence of a fact or circumstance which did not exist. 

4. This is an application for review of a decision dated 7 August 2020 made by a delegate of the Minister for Home Affairs to cancel Mr Awais’ under s 116 of the Migration Act 1958 (Cth) (the Act). This provides as s.116(1)(aa) that a ground to cancel a visa exists where the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist. If a ground to cancel a visa exists, the decision maker must go on to consider whether the vias should be cancelled.

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

6. Ms Awais appeared before the Tribunal on 24 March 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from Mr Himanshu Bhatia.

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. If satisfied that the ground for cancellation is made out, the decision maker must 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?

9. A visa may be cancelled under s 116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

10. In this case, the delegate found Mr Awais’ Subclass 489 visa was granted on 26 October 2018 on the basis that he was nominated by the Northern Territory government as an accountant.  The criteria for the grant of the visa at that time included at cl.489.225(2) that the nominating State or Territory government has not withdrawn the nomination. 

11. The delegate reports that on 25 October 2018 the Northern Territory government contacted the department and requested the nomination was withdrawn.  This was not before the delegate at the time the decision was made to grant Mr Awais’ visa.

12. The delegate records that the Northern Territory government withdrew the nomination because it has received information  that Mr Awais had falsified evidence of work experience in Australia.   Considerable information and argument was devoted to whether or not Mr Awais had provided false information.

13. However, for the purpose of deciding if the ground to cancel his visa exists, the ground relied on was that Mr Awais did not meet the requirement that the Northern Territory government had not withdrawn the sponsorship at the time the visa was granted.  If the nomination was withdrawn, it does not require an examination of the reasons why the nomination was withdrawn.    

14. The notification to Mr Awais that his visa was granted was delivered on 26 October 2018 at 10:21am. 

15. An email from Migration NT, Department of Trade, Business and Innovation, sent to the Department at 5:04pm on 25 October 2018.  It states:

    I'm writing this email to let you know that we would like to remove the nominations for the flowing [ sic] applicants whom the Northern Territory Government has offered nominations.

    o Muhammad Awais …

    …

    It has come to our attention through recent investigations undertaken by this department that the above applicants have made false claims regarding work experience for the purpose of meeting the department's requirements for the Northern Territory Government nominations. These claims are:

    1.    All above applicants claimed they are employed as Accountants by related businesses, from 30 January 2018 to at least 10 August 2018. However   …   claimed that he was the only person employed as an Accountant, in contradiction of information supplied by other applicants.

    2.    This department has received applications every two months for Accountants, claiming to be working for the same business.

    3.    The business does not have a genuine need for these accountants.

    The common tread [sic] in all of the above cases are the business owners, … Business credit/ownership checks attached. MigrationNT has concerns that businesses associate[d] with … have been involved in migration fraud.

    It would be much appreciated if you could please let us know whether it is possible to withdraw the nominations in 7 days' time so we are able to contact all above applicants and notify them of our decision. [redactions in original]

16. It is submitted that while the email commences with wanting to remove the nomination, the last paragraph states the enquiry is about withdrawing the nominations in 7 days’ time to allow for notification of the applicant, and that this means that at the time the visa was granted the nomination had not been withdrawn. 

17. The Tribunal requested the Department for any other information received by MigrationNT about the withdrawal of the nomination, however the Department stated no further correspondence could be located. 

18. The email from Migration NT does not use the language of the Regulations and refers to removing the nomination rather than withdrawing the nomination in the first paragraph. 

19. It also enquiries about whether it would be possible to withdraw the nominations in 7 days’ time to all it to notify the applicant of the decision.  This implies a decision has been made to withdraw the nomination, but this is not to take effect at the time of the email. 

20. On the basis of this email, the Tribunal is not satisfied that the notice from Migration NT was effective to withdraw the nomination by the Northern Territory government. 

21. As the nomination was not withdrawn before Mr Awais’ visa was granted, the ground in s 116(1)(aa) does not exist. The power to cancel Mr Awais’ visa does not arise under this paragraph of the Act and the decision to cancel his visa is be set aside and substituted with a decision not to cancel his visa.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kate Millar
    Senior Member