Buckley (Migration)

Buckley (Migration) [2018] AATA 7 (5 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dennis John Buckley
CASE NUMBER:  1607221
DIBP REFERENCE(S):  BCC2015/3787824
MEMBERS:Jan Redfern (Presiding)

Hugh Sanderson
DATE:5 January 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 186 - Employer Nomination Scheme visa.

Statement made on 5 January 2018 at 5:10 PM

CATCHWORDS
Migration – Subclass 183 (Employer Nomination Scheme) visa - visa granted on basis the applicant was working as Program or Project Administrator - cancellation under s.109 - cancellation of visa following audit and sponsorship bar of the nominating employer - whether incorrect information or bogus document provided - consideration of ANZCO description of Project Administrator – non-compliance not established – power to cancel visadoes not arise – cancellation set aside
LEGISLATION
Migration Act 1958, ss 5, 97-105, 107, 109, 140, 362A
Migration Regulations 1994
CASES
Zhao v MIMA [2000] FCA 1235
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 and Border Protection 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 the applicant had provided incorrect information and a bogus document in support of his application for the grant of the subclass 186 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
We have concluded that the ground for cancellation has not been made out and the decision to cancel the applicant’s visa should therefore be set aside. Our reasons follow.
BACKGROUND
The applicant is a citizen of Ireland and is currently 30 years old. He first entered Australia in 2010 holding a working holiday visa. He was granted a subclass 457 visa on 27 September 2011. He was sponsored for that visa by Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil) on the basis of the position of a Program or Project Administrator.
On 8 November 2013 the applicant applied for a subclass 186 Employer Nomination Scheme visa sponsored by Murphy Pipe and Civil in the position of Program or Project Administrator. In his application, the applicant claimed that he had been working in the position of Project Administration since 12 July 2010. A letter was provided from Murphy Pipe and Civil which claimed that the applicant was working in the position of a Project Administrator, commencing July 2010. Based on this information, the applicant was granted the subclass 186 visa on 25 February 2014.
The Department of Immigration and Border Protection (the Department) conducted an audit of Murphy Pipe and Civil, which commenced in August 2014. As a result of this audit, a delegate of the Minister made a decision under s.140M of the Act to bar Murphy Pipe and Civil from making future applications for approval as a standard business sponsor. Murphy Pipe and Civil sought review of this decision. The Tribunal upheld the bar, but varied the period. This decision has been published by the Tribunal (Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960). Following the original sponsorship bar decision, the Department reviewed the applications of a number of employees who had been sponsored by Murphy Pipe and Civil, including the applicant. As a result of this audit, the Department considered the applicant had provided false and misleading information and bogus documents to the Department in support of his application for a subclass 186 Employer Nomination Scheme visa. A delegate of the Minister wrote to the applicant on 19 January 2016 with a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act.
The delegate noted the following particulars for the grounds for cancellation:
(1) Information conducted while auditing Murphy Pipe and Civil indicated that the applicant had not worked in the position of Program or Project Administrator but was employed as a ‘Mobile Plant Operator’;
(2) The applicant stated in his application that he had been employed by Murphy Pipe and Civil in the position of Program or Project Administrator for the period of 2 May 2011 to 8 November 2013 and therefore had provided incorrect information and failed to comply with s.101 of the Act; and
(3) The letter provided in support of the application by Murphy Pipe and Civil was a bogus document because it provided a false and misleading statement by claiming that the applicant had been employed by Murphy Pipe and Civil as a Program or Project Administrator since 2 May 2011 and therefore failed to comply with s.103 of the Act.
Based on the information obtained in the audit of Murphy Pipe and Civil, the delegate stated that there was reason to believe the applicant had never worked in the occupation of Project or Program Administrator and never undertook work outlined in his nomination application or as described in his 457 visa. The delegate stated that there was reason to believe that the applicant had been employed as a Mobile Plant Operator and had provided false and misleading information and bogus documents when he claimed that he was employed as a Project or Program Administrator.
The applicant’s agent responded to the notice on 11 February 2016 making submissions and providing documents in support of the applicant, including a statement made by the applicant. It was claimed as follows:
(1) The applicant has never provided false or misleading information to the Department and had been employed over the time of his 457 visa as a Project Administrator;
(2) The payslips from Murphy Pipe and Civil showed that the applicant was employed as a ‘Supervisor’ and contracts provided show that he was described as a ‘Project Coordinator’ or ‘Supervisor’;
(3) References were provided from other people working with the applicant claiming he had the skills and was employed as a Project Administrator at the relevant time;
(4) Since leaving Murphy Pipe and Civil, the applicant has continued to work as a supervisor or Project Administrator;
(5) As a Project Administrator, it was necessary for the applicant to have appropriate basic skills and tickets which was why he obtained those qualifications;
(6) The applicant is in a relationship with an Australian permanent resident and they both wish to live together in Australia; and
(7) The applicant is now employed by Jaydo Constructions as a Project Administrator and is a valued employee.
The delegate who considered the matter took into account the following matters when considering whether the applicant had provided false and misleading information and bogus documents:
(1) The definition of a Program or Project Administrator by VETASSESS[1] notes the position is not to perform the associated work, but the administration of the project and managing associated paperwork. The applicant had no academic qualifications which would be required under a skills assessment by VETASSESS;
(2) If the applicant had been working as a Project Administrator he would have been involved in completing administrative tasks and not involved in the daily operations. If the applicant were working in a purely administrative position, he would not have required training to obtain the tickets for excavator, dozer, dumper and loader which he had obtained;
(3) The applicant claimed that he had been working as a Project Administrator since 2 May 2011, however, his pay scale was rated as a Construction Worker Grade 3;
(4) The applicant stated that he was offered work with Murphy Pipe and Civil in June 2010 for labouring duties, but then claims that he was working as a Project Administrator from July 2010 which calls into question the credibility of claims made by the applicant;
(5) The applicant does not have any of the qualifications or prior experience which would be expected to gain employment as a Program or Project Administrator;
(6) The applicant was only 23 when he claims to have started working as a Project Administrator which, when considering the responsibilities and experience necessary of the position, is unlikely;
(7) The description the applicant has given of the work he undertook indicates that he was coordinating a crew or working as a supervisor, but not working as a Project Administrator;
(8) The applicant’s payslips describe him as a supervisor and not a Project Administrator; and
(9) The offer of employment from Murphy Pipe and Civil dated 17 February 2014 describes his position as a supervisor who reports to the construction manager which would not be appropriate if he was working as a Project Administrator.
[1] VETASSESS is a vocational education and training assessment provider used by the Department
Taking these matters into account, the delegate found that the applicant had provided false information and a bogus document in support of his application as he had never been employed as a Project Administrator as claimed in his application. The delegate took into account the submissions as to why the visa should not be cancelled, however, concluded those matters did not outweigh the significant non-compliance. Accordingly, the delegate issued a decision cancelling the applicant’s visa.
INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING
The applicant departed Australia on 14 December 2016.
The Tribunal was provided with the Department file which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.
The Tribunal conducted a telephone directions hearing on 28 June 2017, as a result of which, the applicant provided further evidence and submissions in support of the claims.
The applicant and his agent were provided with the documents relied upon by the Department in coming to their decision.
The applicant’s agent provided submissions to the Tribunal making the following claims:
(1) The work done by the applicant was as a supervisor which is in accordance with the role of a Project Administrator which was the advice which had been given to the applicant by both Murphy Pipe and Civil and their immigration agent;
(2) After commencing work in the pipeline industry in 2010 the applicant developed his career and reputation in Australia;
(3) Although visiting Ireland regularly to visit his daughter who lives there, he is committed to living in Australia;
(4) The applicant is in a long-term relationship with an Australian citizen; and
(5) The applicant was required to return to Ireland in December 2016 and this is the only reason why he is not currently residing in Australia.
The applicant appeared before the Tribunal on 22 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant gave evidence as to his work history. He said that when he first arrived in Australia he got work as a labourer and was then offered work with Pipe and Civil (who were eventually acquired by Murphy Pipe and Civil). He started off working as a labourer, but soon was given a position looking after service locations. He was based in the office at Cardinia with the responsibility of supervising four other workers locating existing electrical and other services along the route of the pipeline. It was part of his role to liaise with the service providers and the onsite supervisor to ensure the pipeline could cross those services. Although not working directly onsite, the applicant was required to oversee the work of contractors; prepare reports and complete all necessary paperwork for the work completed; and ensure that the program was met. Progress meetings were held with the senior management at least each week. It was the applicant’s responsibility to plan for the progress of his team to ensure they maintained the correct pace ahead of other crews in the pipeline construction.
The applicant returned to Ireland once that job was finished before returning to Australia in January 2011 to find work. As his role at Pipe and Civil had been taken by another person, he found alternative employment with Melbourne Civil and Structural Engineers. He said that that this was purely an office job helping them get their work systems into order and organising such things as induction forms, safe work strategies and other managerial structures.
The applicant left that position when Murphy Pipe and Civil offered him a position in Western Australia on the Sino Iron Project which offered more remuneration and career advancement. He said that he was appointed to the position of a Project Coordinator as was stated in the contract he had with Murphy Pipe and Civil dated 28 July 2011. After starting on the project the applicant was then subcontracted to Nielsen Resources, an electrical company, working on that project.
The applicant said that his role involved organising the correct paperwork for the project each day, organising the teams to carry out the work and ensuring the required equipment was available for each work team. He worked out of an office in the middle of the site. He reported daily to the contract manager and met with the contract manager in a more formal meeting once a week. During those meetings the applicant provided updates on the progress of the work and advised on matters requiring attention. He was required to implement the decisions made in those meetings. Reporting to him were four leading hands, who in turn were supervising their crews onsite. The leading hands provided the applicant with timesheets for approval. He provided reports to engineers for the site.
The applicant gave details of the process he was required to participate in to obtain a ticket for various activities. He said that most of the tickets were obtained after only a half day training session. This would not give him certification to do work onsite but assisted him in supervising his workers.
Once his role on the Sino Iron Project ended the applicant was transferred to another project in Queensland. The applicant described the variety of projects that he was involved in. This included preparing a bid for a project, which required him to work with the engineering professionals, and resolving problems for the particular project. On one job he was working with an engineer supervising three labourers, two welders, one weld inspector and three excavators on the pipeline. He was based in an office and was required to go onsite to oversee the work. In the next job he assigned to the applicant was required to organise the necessary stockpiles, deliveries and transport for the team he was supervising. There were over 300 people on that project with about 40 people under his direct supervision. He was required to report to the construction manager and senior engineer.
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. A ‘bogus document’ includes a document that the Minister (or delegate) reasonably suspects is a document that was obtained because of a false or misleading statement (s.5 of the Act)
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.
While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).
The questions for determination are therefore:
(1) Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?
(2) If the answer to (1) is yes, was the notice valid?
(3) If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?
(4) If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?
In the present matter, the Tribunal is satisfied that 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?
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 non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act and s.103 of the Act as set out above in paragraph 6.
In order to assess whether there was non-compliance by the applicant in providing incorrect answers and bogus documents in support of his application, it is necessary to identify the answers said to be incorrect and the documents said to be bogus. These matters have been set out in the NOICC and in the decision of the delegate.
The incorrect information is said to be the information set out in pages 8-9 of the application as follows:
Give details of employment undertaken in the last 10 years.
Position: Project Administrator
Employer name: Murphy Pipe and Civil
Country: AUSTRALIA
Date from: 02 May 2011
Date to: 08 Nov 2013
Description of duties: Please see detailed statement of service attached
Is this employment related to the nominated position? Yes
The document said to be bogus is a letter from Les Kilgrew, director at Murphy Pipe and Civil titled ‘Statement of Service’. This letter included the following information:
Dennis Buckley is currently in full-time employment, working a 38 hour week, as a Project Administrator, working a minimum 38 hour week, with Murphy Pipe & Civil having commenced in May 2011. He is currently on a sub-class 457 visa, which was granted on 27 September 2011 with our company as the sponsoring employer.
Prior to this, Mr Buckley had worked with us between July 2010 December 2010 whilst on a Working Holiday Visa, again as a Project Administrator…
Following is a list of typical tasks, duties and responsibilities performed by Mr Buckley in this role:
·Generally manage all administrative operations for site,
·Liaise with employees and contractors to answer questions, disseminate or explain information,
·Process and prepare documents,
·Prepare on-site meeting agendas, attend meetings, and record and transcribe minutes, sure(sic) they comply with all Health and Safety Acts and regulations,
·Monitor and direct the work of less experienced employees and co-ordinate personnel,
·Maintain records and progress and departures from specifications for purposes of variations encountered during construction
·Maintain a safe and clean work environment.

In the decision record, the delegate relies on the interpretation of Project Administrator made by VETASSESS, which in turn refers to the description of Project Administrator set out in the Australian and New Zealand Standard of Classification Occupations (ANZSCO). If the Department requires an applicant to have an assessment or if an applicant chooses to obtain an assessment to facilitate the processing of their application, applicants may use VETASSESS for this assessment. In this case, the applicant was not required to obtain such an assessment nor did he do so.
ANZSCO was developed in 2006 and is a skill-based classification of occupations for all jobs in the Australian workforce. The Australian Bureau of Statistics, which publishes ANZCSO, has given the following guidance in relation to the interpretation of ANZSCO occupation definitions:[2]
[2] Australian Bureau of Statistics website ANZSCO OCCUPATION DEFINITIONS
ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.
The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.
Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO.
The information in the application which was identified by the delegate as being incorrect was the statement that the applicant had been employed as a Project Administrator with Murphy Pipe and Civil from 2 May 2011 to 8 November 2013. As already noted, the detailed Statement of Service attached to the application was a letter from Murphy Pipe and Civil signed by Les Kilgrew, director. The delegate concluded that the letter was bogus but did not identify which part or parts of the letter were found to be false and misleading. Critical to the delegate’s conclusions were the findings that the applicant was employed as a supervisor which was not an ‘administrative role’. This was said to be inconsistent with the role of a Project Administrator which was ‘administrative’.
To understand these findings it is relevant to consider the ANZSCO description of the occupation of Project Administrator. The position of a Project or Program Administrator is described in ANZSCO as follows:
CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·developing, reviewing and negotiating variations to contracts, programs, projects and services
·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
·managing paperwork associated with contracts, programs, projects and services provided
·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
·advising senior management on matters requiring attention and implementing their decisions
·overseeing work by contractors and reporting on variations to work orders
·preparing and reviewing submissions and reports concerning the organisation's activities
·collecting and analysing data associated with projects undertaken, and reporting on project outcomes
·reviewing and arranging new office accommodation
Occupations:
511111 Contract Administrator
511112 Program or Project Administrator
511112 PROGRAM OR PROJECT ADMINISTRATOR
Alternative Title:
Project Coordinator
Plans and undertakes administration of organisational programs, special projects and support services.
Skill Level: 2
We do not accept the delegate’s findings that the role of a ‘Project Administrator’ is purely administrative in nature. The position of Project Administrator, as described above, is a general description that would cover a broad and diverse range of occupations and industries. The definition recognises that qualification for the position may arise from relevant experience (assessed as at least three years) or formal academic qualifications which may require some on-the-job training. The description does not restrict the position to office work and expressly notes that the position includes the implementing of managerial decisions, overseeing work by contractors and reporting on variations to work.
Although it is noted in the delegate’s decision that VETASSESS would require a diploma or higher qualification, this is not a prerequisite in the ANZSCO definition. ANZSCO recognises that qualification for the position may arise from relevant experience of at least three years without any formal academic qualifications. The description goes on to state that if the person does have academic qualifications some on-the-job training may still be necessary. The applicant does not have any formal academic qualifications and he has never made such a claim. The applicant claimed he was qualified for the position of Program or Project Administrator based on his work history and it appears he was assessed on this basis.
The applicant was not required to undertake a skills assessment and it is clearly stated in his application that he did not have one. The skills assessment formula used by VETASSESS does not form part of the position description in ANZSCO nor was it part of the application. It is therefore difficult to understand why this was used as one of the grounds leading to cancellation. The applicant specifically states in the application that he has not undertaken a skills assessment and that his only secondary level education was a Level 6 National Craft Certificate – Electrical obtained in Ireland.
The applicant presented as a genuine and truthful witness before the Tribunal. His evidence about his role and work history was credible and was corroborated by various references and statutory declarations from colleagues and organisations unrelated to Murphy Pipe and Civil. The applicant’s evidence to the Tribunal and the statements provided from people independent of Murphy Pipe and Civil reflects the information the applicant provided in the application and also the information provided by Murphy Pipe and Civil in the Statement of Service.
The Statement of Service specifically states that the typical task of the applicant was to ‘manage all administrative operations for site’. The Offer of Employment dated 29 August 2013, which was provided with the application, notes that the applicant would be working on the pipeline project and would be provided with ‘motelling style accommodation at Murphy Pipe and Civil camps’. The fact that the applicant would not be based in an office and that he was required to perform duties onsite was also disclosed in the Statement of Service. For instance, the tasks identified in the Statement of Service letter from Murphy Pipe and Civil, such as duties to ‘monitor and direct the work of less experienced employees’ and ‘represent the company on site’ clearly state or at least infer that key aspects of the applicant’s role were undertaken onsite.
It is not apparent that this was of concern to the Department in granting the applicant his subclass 186 visa. While this is not relevant to the question of whether there was non-compliance with ss 101 or 103 of the Act, it exposes a flaw in the approach of the delegate. We are not bound by the findings of the delegate and must decide this matter afresh but this assists to explain why we have formed a different view about non-compliance. Critical to the issue of whether there was non-compliance in the way described in the s 107 notice is the question of whether the applicant provided incorrect information or bogus documents in support of his application. The fact that the Department or VETASSESS may now form the view that the role of the applicant would not meet the criteria for the role of ‘Project Administrator’ or that the original assessment was in error is not relevant. A matter that is central to any finding of non-compliance is the question of whether the applicant in fact undertook the tasks described in his application and in the letter from Murphy Pipe and Civil in the relevant period. Relevantly, the delegate made no findings that the applicant did not undertake the tasks set out in the Murphy Pipe and Civil Statement of Service letter. Nor are we so satisfied.
The applicant’s position was described in the Offer of Employment attached to the application as ‘Project Administrator (Title – Supervisor) reporting to the Project Manager’. The fact that Murphy Pipe and Civil used the description of ‘Project Administrator’ and ‘Supervisor’ interchangeably in this document explains why the applicant is simply described as a supervisor and not as a Project Administrator in other company documentation. This, of itself, is not inconsistent with the applicant’s claims.
The delegate noted that the applicant was employed on an Enterprising Bargaining Agreement under the classification of Construction Worker Grade 3 (CW 3). It was noted that the occupation of Program or Project Administrator was not listed under the CW 3 classification. There is no information that the occupation of Program or Project Administrator was listed under any classification in the records maintained by Murphy Pipe and Civil. The evidence of the applicant was that he simply accepted the pay rate which was offered to him by Murphy Pipe and Civil and he did not question what agreement he was working under. The evidence before the Tribunal, as previously constituted to determine the sponsorship bar appeal and which we accept, was to the effect that the record-keeping of Murphy Pipe and Civil is not reliable (refer Murphy Pipe & Civil Constructions Pty Ltd (Migration)). The Tribunal accepts that the recording of the applicant’s pay on an Enterprise Bargaining Agreement at CW 3 was simply a way for Murphy Pipe and Civil to record the pay rate the applicant was receiving and was not indicative of the position he held.
In summary, the Tribunal has considered all the information provided, including the information provided by the Department as a result of the audit of Murphy Pipe and Civil. Having regard to the weight of the evidence, the Tribunal is not satisfied that the information provided by the applicant in his visa application was incorrect. Further, the Tribunal finds that the information in the letter from Murphy Pipe and Civil, which was provided with the application, accurately sets out the work of the applicant over the relevant period and therefore was not a bogus document. The Tribunal finds that when the applicant commenced work with Murphy Pipe and Civil on 2 May 2011 (which was the second time he had worked for the company) he was employed as a Project Administrator and he carried out the tasks consistent with a Project Administrator as described in ANZSCO 511112.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
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.

Jan Redfern
Deputy President

Hugh Sanderson
Member

ATTACHMENT – 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.

97Interpretation
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).

98Completion 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.
99Information 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.
100Incorrect 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.
101Visa 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.

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.

[2018] AATA 7

5 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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