Chairesa (Migration) [2024] AATA 3711 (23 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Lea Chairesa
REPRESENTATIVE: Mr Alim Lim
CASE NUMBER: 2308855
HOME AFFAIRS REFERENCE(S): BCC2023/2710279
MEMBER:James Silva
DATE:23 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 23 September 2024 at 2:15pm
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 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
The review applicant (former visa holder, ‘applicant’ in this decision) is a national of Indonesia, born in 1996. She was granted a Bridging visa A on 4 August 2022, in association with a partner visa application. On 11 May 2023, the delegate issued a Notice of Intention to Consider Cancellation (NOICC, s.107 notice) because the delegate formed the view there were grounds for cancelling the applicant’s visa under s.109 of the Act. The applicant responded to NOICC on 24 May 2023. On 12 June 2023, the visa was cancelled. The applicant seeks review of the decision to cancel the visa.
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a Temporary Skill Shortage (subclass 482) visa application lodged on 11 May 2020. After considering the applicant’s NOICC response and other relevant circumstances, they concluded that the visa should be cancelled. 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 was represented in relation to the review.
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.
Background to this matter
The applicant is an Indonesian national born in August 1996; hence 28-years-old at the time of this decision.
The applicant’s recent migration history provides important context for the Bridging A visa cancellation…
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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The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the applicant's Bridging A visa. The applicant, an Indonesian national, had previously been granted a Temporary Skill Shortage (subclass 482) visa sponsored by Eunoia Enterprise Pty Ltd, and later a Bridging A visa associated with a Skilled Employer Regional (subclass 494) visa application, also sponsored by Eunoia. Following the revocation of Eunoia's sponsorship, the applicant withdrew her subclass 494 visa application and was granted a Bridging A visa in association with a Partner visa application. The Department subsequently issued a Notice of Intention to Consider Cancellation (NOICC) regarding this Bridging A visa, leading to its cancellation.
The primary legal issue before the Tribunal was whether the Department's decision to cancel the applicant's Bridging A visa was justified under section 109 of the Migration Act 1958. This required the Tribunal to determine if the cancellation power arose, specifically considering whether the Bridging A visa grant was based, wholly or partly, on incorrect information provided in a previous visa application, and whether the Minister had issued a valid notice under section 107 of the Act detailing the alleged non-compliance. The Tribunal also had to consider the applicant's response to the NOICC and whether, having regard to all circumstances, the visa should be cancelled.
The Tribunal reasoned that while the applicant had provided incorrect information in her subclass 482 visa application regarding her intentions to work temporarily in Australia, this incorrect information did not influence the grant of the Bridging A visa that was subsequently cancelled. The Tribunal noted that the grant of a Bridging A visa is typically based on the lodgement of a valid application for a substantive visa. Furthermore, the Tribunal found that the Department's cancellation decision was predominantly based on the incorrect information provided for the subclass 482 visa, rather than the Bridging A visa itself. Although non-compliance was established, the Tribunal concluded that, having regard to all relevant circumstances, the visa should not be cancelled.
Consequently, the Tribunal set aside the Department's decision to cancel the applicant's Subclass 010 (Bridging A) visa and substituted a decision not to cancel it.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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. Background to this matter The applicant is an Indonesian national born in August 1996; hence 28-years-old at the time of this decision. The applicant’s recent migration history provides important context for the Bridging A visa cancellation that is subject to review in this decision. The decision under review and the submission of 12 October 2023 provide a convenient summary:§ On 19 January 2021, the applicant was granted a Temporary Skill Shortage visa (subclass 482), with Eunoia Enterprise Pty Ltd (‘Eunoia’) as the sponsor, employing her in the role of Pastry Cook. The visa ceased on 19 January 2023.§ On 4 August 2022[1], the applicant lodged an application for Skilled Employer Regional visa (subclass 494), also with Eunoia as the sponsor. She was granted a Bridging A visa in association with this application.§ The Department decided on 9 December 2022 to revoke Eunoia’s sponsorship.§ On 30 December 2022, the applicant was granted a Bridging A visa associated with her application for a Partner visa (subclass 820/801).§ Following the revocation of Eunoia’s sponsorship, the following events occurred in relation to the applicant’s subclass 482 visa, the subclass 494 application and associated bridging visas.- The Department issued an NOICC in relation to the subclass 482 visa; however, that expired on 19 January 2023, prior to any decision as to the cancellation.- The Department issued an NOCC in relation to the Bridging A visa associated with the applicant subclass 494 visa application, under s.109. However, the applicant withdrew the subclass 494 visa application (due to her partner visa application), and the Bridging A visa expired without being cancelled.§ As noted above, on 11 May 2023, the Department issued an NOICC regarding the cancellation of the Bridging A visa associated with the partner view application. Following receipt of the applicant’s comments, the cancellation proceeded on 12 June 2023. [1] The submission of 12 October 2023 gives the date as 4 August 2023, which is evidently a typo. Significantly, the applicant was granted a Partner (Temporary) visa (subclass 820) on 6 December 2023, on the basis of her relationship with Mr Ian Callahan. Evidence before the Tribunal The Tribunal has before it the following relevant information, from the Department and Tribunal files:§ Notice of Intention to Consider Cancellation (NOICC) of the Bridging A visa under section 109 of the Act, dated 11 May 2023.§ Submission from the applicant’s representative (response to NOICC), 24 May 2023, which included: (a) tracking history of the Department’s correspondence; (b) the applicant’s CV and photographs of her performing work as a pastry cook; (c) company search relating to Eunoia Enterprise Pty Ltd (showing that the applicant’s name did not appear on public records; (d) photographs of her and her partner Mr Ian Callahan and his children, and documents relating to the relationship; (e) donation and life membership, Royal Zoological Society of South Australia Inc; and (f) copy of child’s birth certificate (Mr Ian Callahan’s son born in September 2012). - Supporting letters relating to the applicant’s work as a pastry cook, from Ms Molly Tanner and Mr Jonathan Mimlich.- The Department file includes the representative’s earlier submission dated 30 March 2023. This was in response to an NOICC issued on 6 March 2023 to cancel the Bridging A visa associated with the applicant subclass 494 application. As noted above, this was overtaken by events. Nonetheless, the response to the NOICC contains the same material that was submitted in relation to this cancellation.§ Decision to cancel the applicant’s Bridging A visa, dated 12 June 2023; and notification of the same date.§ Application for review, lodged on 20 June 2023. The applicant provided a copy of the cancellation decision.§ Submissions dated 12 October 2023 and 9 November 2023.§ Supporting documents:Documents referred to by the Department§ Applicant’s Temporary Skill Shortage visa application, lodged online on 11 May 2020; and cover letter from her representative.§ Sponsorship obligation letter from Ms Hilda Indranurdi, Eunoia Enterprise Pty Ltd, dated 2 December 2020.§ Notice of decision to cancel the approval of Eunoia Enterprise Pty Ltd as a standard business sponsor, dated 9 December 2022.Documents to the Tribunal§ Submission dated 12 October 2023, with (additional documents): (a) the applicant’s statutory declaration to support her partner visa application, with details of two witnesses, Mr Jonathan Mimlich and Ms Amy Nielson; and (b) other documents relating to the partner visa application.§ Submissions dated 8 and 9 November 2023, with evidence relating to the roles of Ms Hilda Indranurdi and Ms Rosna Chairil as the sole directors and founders of Eunoia Enterprise Pty Ltd (including documents relating to the employment of staff).
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. Background to this matter The applicant is an Indonesian national born in August 1996; hence 28-years-old at the time of this decision. The applicant’s recent migration history provides important context for the Bridging A visa cancellation that is subject to review in this decision. The decision under review and the submission of 12 October 2023 provide a convenient summary:§ On 19 January 2021, the applicant was granted a Temporary Skill Shortage visa (subclass 482), with Eunoia Enterprise Pty Ltd (‘Eunoia’) as the sponsor, employing her in the role of Pastry Cook. The visa ceased on 19 January 2023.§ On 4 August 2022[1], the applicant lodged an application for Skilled Employer Regional visa (subclass 494), also with Eunoia as the sponsor. She was granted a Bridging A visa in association with this application.§ The Department decided on 9 December 2022 to revoke Eunoia’s sponsorship.§ On 30 December 2022, the applicant was granted a Bridging A visa associated with her application for a Partner visa (subclass 820/801).§ Following the revocation of Eunoia’s sponsorship, the following events occurred in relation to the applicant’s subclass 482 visa, the subclass 494 application and associated bridging visas.- The Department issued an NOICC in relation to the subclass 482 visa; however, that expired on 19 January 2023, prior to any decision as to the cancellation.- The Department issued an NOCC in relation to the Bridging A visa associated with the applicant subclass 494 visa application, under s.109. However, the applicant withdrew the subclass 494 visa application (due to her partner visa application), and the Bridging A visa expired without being cancelled.§ As noted above, on 11 May 2023, the Department issued an NOICC regarding the cancellation of the Bridging A visa associated with the partner view application. Following receipt of the applicant’s comments, the cancellation proceeded on 12 June 2023. [1] The submission of 12 October 2023 gives the date as 4 August 2023, which is evidently a typo.
Decision
Reasons for decision
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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.James SilvaMemberATTACHMENT – 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.101Visa applications to be correctA 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.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.
Ratio Decidendi
Legal Principle Established
There is no question in this case as to the genuineness of documents. This factor is therefore not relevant.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 An initial question that arises is whether this consideration refers to the visa grant that is subject to cancellation, or any visa grant.§ In the response to the NOICC, the representative stated that the grant of the Bridging A visa (the one which was cancelled and is subject to this review) was made subject to cl.010.212(2), which refers the visa holder having made a valid application for a substantive visa of a kind that can be granted while they are in Australia, in this case, the partner visa application. The incorrect information relating to the applicant’s employment and intentions played no part in the grant of the Bridging A visa.§ The delegate, in the decision under review, considered the incorrect information in relation to the grant of the subclass 482 visa, noting that ‘had the visa delegate been aware that the visa holder intended to open the business […], rather than work […] on a temporary basis’, the application ‘would have been assessed under a different applicant profile for the purpose of the sponsorship nomination’. As such, they concluded that the decision was based ‘predominantly […] on the incorrect information’. In the Tribunal’s view, the reference to a ‘decision to grant a visa or immigration clear’ requires it to assess the effect of the incorrect information on any visa grant or immigration clearance, including the subclass visa, and not simply the visa that has been cancelled (i.e., the Bridging A visa associated with the partner visa application).[3] [3] See the comments in Vata v MIBP [2015] FCCA 1735 The Tribunal now considers whether the decision to grant the subclass 482 visa was based, wholly or partly, on the incorrect information provided in that application. As noted in Guo v Minister of Immigration[4], this requires it to consider the actual decision made, rather than to engage in speculation as to what it might have been had the correct information been before the decision maker. [4] Guo v Minister for Immigration [2018] FCCA 1173 The Department’s PAM Procedural Instruction applicable at the time of the visa grant on 19 January 2021[5] offers some insight as to the basis for the delegate’s satisfaction that the applicant was a genuine temporary entrant: see 4.4.2 ‘Genuine temporary entrant’. Clearly, the applicant’s declaration on page 13 of the subclass 482 visa application form that she was a genuine temporary entrant was one key factor. [5] [Sch2Visa482] Temporary Skill Shortage visa (subclass 482) – visa applications Relevantly, cl.482.222(a) requires that the applicant intends to genuinely to stay in Australia temporarily, having regard to: (i) the applicant’s circumstances; and (ii) the applicant’s immigration history; and (iii) any other relevant matter. The PAM Procedural Instruction notes that the ‘genuine temporary entrant (GTE)’ requirement can generally be considered met unless the primary applicant has held more than two Temporary Skill Shortage (TSS) visas in the previous five years, or had been in Australia for four years and the decision-maker has significant concerns that the applicant is not a GTE. If either of these apply, then a further assessment is required. The Instruction then sets out various factors that may add weight to an assessment that an applicant is, or is not, a GTE. These concerns issues such as compliance with past visas, the duration of past periods of stay in Australia, and whether the applicant has any established residence in Australia.
