Chairesa (Migration)
[2024] AATA 3711
•23 September 2024
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
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – incorrect answer in a previous visa application – genuine temporary work as a Pastry Cook – establishment of a business – family connection to employer – nature of the applicant’s duties – applicant granted a Temporary Partner visa – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2, cls 010.212, 482.222; r 2.41CASES
Guo v Minister for Immigration [2018] FCCA 1173
MIAC v Khadgi (2010) 190 FCR 248
Vata v MIBP [2015] FCCA 1735STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 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).
The applicant appeared before the Tribunal to give evidence and present arguments, on 30 October 2023 and 16 September 2023. The hearings were held via video conference, as the applicant is in Adelaide, and the Tribunal member in Sydney. The hearings were conducted in the presence of an interpreter in the Indonesian and English languages, although their role was limited as the applicant speaks fluent English.
The applicant is represented in this matter by legal practitioner Mr Alim Lim, of ALP lawyers, who participated in both hearings.
Did the notice comply with the requirements in s 107?
In the present case, the applicant has not raised concerns about whether the notice issued by the Minister’s delegate complied with s.107, and there is nothing in the materials before the Tribunal to raise questions about this. 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 s.107 notice described the non-compliance with s.101(b) of the Act, ‘Visa applications to be correct’: A non-citizen must fill in or complete his or her application form in such a way that: … (b) no incorrect answers are given or provided.
The s.107 notice – details of non-compliance
According to the s.107 notice, the incorrect answers were given in a Temporary Skill Shortage (subclass 482) visa application, lodged on 11 May 2020, which resulted in the grant of a subclass 482 visa on 19 January 2021:
§ On page 4 of the visa application form, the applicant answered as follows:
Visa stream: Short-term
Maximum visa period: Up to 2 years
Occupation name and code: 351112 – Pastrycook
Does the applicant acknowledged that they are applying for the visa stream as specified in the nomination? Yes.
§ On page 13 of the visa application form, the applicant answered ‘Yes’ to the question: ‘The applicant declares that they are a genuine temporary entrant’.
The delegate’s description of the non-compliance with s.101(b) consisted of the following:
§ The information on page 4 of the visa application form – relating to genuine temporary work as a Pastry Cook for up to two years – was incorrect because: ‘It appears you have utilised the Temporary Skill Shortage visa program to facilitate the establishment of Mascavado’s as the owner and founder of the business’.
§ The ‘genuine temporary entrant’ declaration on page 13 of the visa application form, which included information that: (a) she has suitable experience, skills and qualifications for the position; and (b) she ‘genuinely intends to work for the nomination employer [sic]’ were also incorrect. The non-compliance was described in the following terms: ‘You did not genuinely intend to work temporarily in the position of Pasty Cook […] it appears you have utilised the Temporary Skill Shortage visa program to facilitate the establishment of Mascavado’s as the owner and founder of that business.’
The NOICC referred to the following evidence of non-compliance (details are set out in the delegate’s decision record, and were discussed at hearing):
a) Information provided on the application form (see above) and in the accompanying documents. The accompanying documents were: (i) a ‘sponsorship obligation letter’ dated 2 December 2020 from Ms Hilda Indranurdi, Director of Eunoia, detailing the applicant’s role as pastry cook; and (ii) a letter ‘Re: Lea Chairesa – Genuine temporary entrant statement’ dated 11 May 2020 from ALP Lawyers.
b) Information provided by Eunoia Enterprise Pty Lid (‘Eunoia’) in the accompanying application to become an approved standard business sponsor, setting out in detail the responsibilities and main tasks associated with the position.
c) Information that came to light in the course of monitoring Eunoia (see below).
d) Open-source information about Mascavado’s (see below).
Employer monitoring: The NOICC and delegate’s decision record set out information that came to light when Australian Border Force (ABF) started monitoring Eunoia from 15 September 2022.
Essentially, this information appeared to indicate that Eunoia was not employing the applicant as a pastry cook, and a genuine temporary entrant. Rather, it appeared that the applicant was closely linked with Eunoia, which purported to sponsor her under the Temporary Skill Shortage visa program even though she was in fact the founder and operator of Mascavado’s. The information includes the following points that go to Eunoia’s employment/sponsorship of the applicant; her role as a Pastry Chef and whether she was a genuine temporary entrant (rather than a person seeking to establish a business):[2]
§ The applicant’s involvement in the financial affairs of Eunoia and undeclared family ties with its director did not appear consistent with her claimed employment/sponsorship as a Pastry Cook.
- The indicia of financial involvement were: (a) ABF suspected that she registered Abaddon Investment Pty Ltd on 23 July 2021, in preparation for her role in Mascavado’s; (b) on 16 June 2020, she became an authorised signatory for Eunoia’s bank account; and (c) Abbadon received bank transfers from both Eunoia and the applicant’s personal bank account.
- The delegate referred to open source material indicating that the applicant is related to Hilda Indranurdi (the director of Eunoia), having given her details as an emergency contact on various forms since 2011; with social media photographs of the two since 2016; and the applicant’s confirmation at interview in September 2022 that she is ‘like family but not direct family’.
§ The applicant had worked for Mascavado’s while holding bridging visas with condition 8101 (No Work), indicated by a payslip dated 6 to 19 April 2020 (and the fact that Mascavado’s started operations in March 2020).
§ The applicant had presented publicly as the owner and/or manager of Mascavado’s since March 2020, when it opened. (For details, see below.)
§ The applicant reportedly stated at interview that she was more like a sous chef, and that she also helped with other aspects of the business (including waiting, front desk tasks and ordering produce). This implied not merely that she undertook ancillary tasks, but rather that she had an administrative and managerial role beyond that of a pastry cook.
[2] Note: Some of the information addresses other issues, such as Eunoia’s apparent failure to pay the applicant the nominated salary; and whether the applicant’s actual duties were consistent with that of a Pastry Chef (i.e. allegedly working more like a sous chef, and/or undertaking tasks indicative of a less skilled position, or of a managerial/administrative character.
The NOICC identified the following information that came to light in the course of monitoring the employer, Eunoia Enterprise Pty Ltd, which led to the cancellation of their approval as a standard business sponsor, under s.140M of the Act.
§ Salary: The applicant’s approved nominated salary to work as a Pastry Cook was $A58,000 per year, yet for the period 1 July 2021 to 30 June 2022, she was paid $A55,769.
§ Nature of the applicant’s work: At interview on 15 September 2022, the applicant stated that due to her seniority, she worked ‘more like a sous chef’ rather than a pastry cook. She helped with other areas of the business, such as cleaning dishes and tables, and delivering wholesale orders.
§ Non-compliance with Bridging A visa conditions: The applicant held Bridging A visas: (a) in effect from 4 January 2019 to 11 June 2020; and (b) from 12 May 2020. These had visa condition 8101 No Work attached to them. The delegate pointed to a payslip dated 6 to 19 April 2020, provided in support of the applicant’s Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa that demonstrated her non-compliance with condition 8101 of the Bridging A visa she held at that time.
As noted in the delegate’s decision record, and discussed at hearing, the applicant presented herself as the owner and founder of Mascavado’s in the following instances:
- Article of 21 April 2020, indicating that the applicant moved to Adelaide and started work on the project ‘a year ago’; that she contracted the design firm for the fit-out; and Peculia Familia for branding.
- Article in June 2020, stating that the applicant found that ‘starting a business at her age requires “ambition and bravery”’, and that, after Mascavado’s failed launch in October 2019, she was putting the final touches on the new patisserie in early 2020.
- Article in November 2020, describing the applicant as the founder of Mascavado’s.
- Article in November 2022, describing her as ‘owner and pastry chef’, who, years later, is still doing her ‘own things’.
Response to the s.107 notice
On 24 May 2023, the applicant’s representative replied to the s.107 notice (echoing and expanding on the earlier response of 30 March 2023 to the NOICC relating to an earlier Bridging A visa). The letter states that the NOICC consists of ‘unfounded allegations’. It emphasises that: (a) she did indeed work as a pastry chef, and (b) she never ‘mentioned or held herself out to be the owner’ of the business, she was ‘merely asked to conduct the interview for marketing purposes’, because her employers were ‘camera shy’. The letter then goes on to address the discretionary factors in deciding whether to cancel the visa (in the event that the delegate were to find non-compliance).
Evidence to the Tribunal
During the review, the applicant has maintained that she provided no incorrect information, but that these are ‘unfounded allegations’. Much of the evidence related to her work as a pastrycook, and to the ownership and management of Eunoia Enterprises Pty Ltd and Mascavado’s by Ms Indranurdi and Ms Chairil.
Analysis and conclusion
The applicant has provided submissions, oral evidence and supporting documents to demonstrate that she did not provide incorrect information in relation to her role as pastrycook and the basis for her subclass 482 visa; and to address the delegate’s concerns that she has ‘utilised the Temporary Skill Shortage visa program to facilitate the establishment of Mascavado’s, as the owner and founder of the business’.
Overall, the Tribunal has concerns about the applicant’s reliability as a witness.
§ First, it found her business and property arrangements opaque. Examples of this are her evidence at hearing that: (a) she avoided disclosing Ms Indranurdi’s business interest in Mascavado’s publicly, preferring to keep her as a hidden figure; (b) she failed to declare that she is distantly related to Ms Indranurdi (Mr Lim suggested it was an ‘oversight’); (c) that Ms Indranurdi simply paid her some money for her time, a ‘little gift’ that was not a breach of condition 8101 (No Work) of her then bridging visa; and (d) that her mother bought a house in their joint name in 2013, allegedly to avoid paying rent. These factors give the impression that the applicant is not candid, but rather somewhat selective in the information that she provides.
§ Second, the Tribunal finds particularly problematic the applicant’s presentation of herself as the owner of Mascavado’s.
-It does not accept that her claim that ‘she never mentioned or held herself out to be the owner to the media’. There are four articles in local business promotions, dated from April 2020 to November 2022, which contain personal details about the applicant and her role in the business. The Tribunal is not satisfied that this was part of a campaign to present the business as one owned and operated by a pastry cook, or by the applicant’s suggestion that once one of these agencies published those details, the others followed suit in a bid to also cover the story.
- Third, the applicant said at hearing that she was genuinely planning to work on the subclass 482 visa for a few years, and then return to Indonesia to open her own business. Her plans changed only after she met Mr Callahan. However, the Tribunal places greater weight on the written submissions that refer to her strong community ties in Australia over more than 11 years. In its view, these further undermine her claim to have been a genuine temporary entrant only.
The Tribunal accepts that the applicant was intending, and did work as a pastry cook in Mascavado’s. However, it finds that she was not truthful about her family relationship with Ms Indranurdi at the outset; or about her beneficial or fiduciary interests in Ms Indranurdi’s (and Ms Chairil’s) businesses; or about her intentions to stay in Australia only temporarily.
In determining whether there was non-compliance as described in the s.107 notice, the Tribunal reaches the following conclusions.
§ Despite the above findings, the Tribunal is not satisfied that the information on page 4 of the visa application is incorrect, such as there is non-compliance with the s.107 notice. It notes the applicant’s focus during this review in establishing that she did work as a pastrycook. In its view, the answers on page 4 address the visa that the applicant was seeking and the nominated occupation as a pastrycook. Even though the Tribunal shares the delegate’s concerns that the applicant was not merely interest in a short-term visa for two years, and that her interest in the business was not merely as a pastrycook, the answers she provided fall short of being incorrect information within the meaning of s.101(b).
§ However, the Tribunal finds that the applicant’s declaration on page 13 of the applicant that she was a ‘genuine temporary entrant’ is, in the light of the above conclusions, incorrect information. The Tribunal reaches this conclusion based on the information referred to in the delegate’s decision (in particular, how the applicant presented herself as the owner of Mascavado’s), her migration history and her evidence to the Tribunal that she and her mother had bought a house in 2013 (taking into account that it does not accept as reliable her evidence that this was solely to avoid the payment of rent while she was a student).
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
Consideration of prescribed circumstances
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations, and addressed in the following paragraphs.
The correct information
The correct information is that the applicant was not a genuine temporary entrant, but rather was applying for a subclass 482 visa as a means of establishing herself, and shoring up business interests that she was involved in, in Australia.
The Tribunal gives considerable weight to this factor in favour of cancelling the visa.
The content of the genuine document (if any)
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.
It is apparent from this material that the visa delegate would have referred to the applicant’s declaration on page 13, but that this was not determinative in assessing whether she was a GTE, and hence in granting the visa.
The Tribunal places slight weight on this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant claims that there was no non-compliance. However, there was broad discussion during the review of the circumstances that prevailed at that time. The Tribunal finds that the non-compliance – that is, the false declaration that she was a genuine temporary entrant – came in the context of the applicant applying for successive temporary visas to establish herself in Australia, and of being selective in the information she provided to the Department.
It places considerable weight on this in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant said that she is no longer involved in Mascavado’s, but is currently working casually as a ‘pastry allrounder’ from time to time. She is also busy in the home and preparing for a move to Melbourne.
The applicant is in a spousal relationship with an Australian citizen Mr Ian Callahan, and is involved with his two teenage children from a previous relationship, who visit from time to time. The applicant provided a copy of a statutory declaration dated 15 June 2023 setting out details of the relationship, and some supporting evidence, such as documents of shared financial responsibilities and co-habitation, and family photographs. She gave some evidence about the relationship,
The applicant said that she and her partner have a social network mainly from people in the hospitality sector, and some school friends.
The Tribunal considers the applicant to be well-integrated into the community, and places moderate weight on this factor against cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The non-compliance occurred in May 2020, more than four years ago. The submissions in this matter contend that there has been no non-compliance and that the applicant has been completely honest in all her dealings with the Department of Home Affairs. However, for the reasons set out above, the Tribunal finds that the applicant did provide incorrect information. It follows that she has therefore also not complied with section 105(1) which requires that a non-citizen must ‘as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.’ Subsection (2) adds, ‘subsection (1) applies despite the grant of any visa’.
The Tribunal places slight weight on this factor in favouring of cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Tribunal
There are no other known instances of the applicant’s non-compliance with ss.101-105. It is therefore an irrelevant factor.
The time that has elapsed since the non-compliance
The non-compliance set out in the s.107 notice occurred in May 2020, i.e., more than four years ago. As noted in the submission of 12 October 2023, the applicant claims to have ‘cultivated and upheld strong connections with Australia over the past 11 years (now twelve) since her arrival, encompassing both economic and social ties’. This refers to her entry into Australia in July 2011 as the holder of a student visa (and, incidentally, serves to reinforce the Tribunal’s finding above that there was non-compliance when she declared in May 2020 that she was a ‘genuine temporary entry).
Given the passage of time and the applicant’s integration into the community, the Tribunal places moderate weight on this factor against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known instances of the applicant breaching the law. As this is an expectation of visa applicants and holders, the Tribunal places minimal weight against cancelling the visa.
Any contribution made by the holder to the community
The applicant described her current family and work arrangements, and stated at hearing that she would be able to provide documentation relating to her past work and taxation. She also claims to have become a life member of the Zoological Society of South Australia Inc, with a receipt showing payment of $2,495. She said at hearing that she remains interested in animal welfare matters, but has had little time to devote to these of late.
Although the applicant had only limited specific evidence going to her past or present contribution to the community, she presented as a person who has integrated well, with reasonable social and family connections.
The Tribunal places a little weight on this factor against cancelling the visa.
Other relevant circumstances
While the factors set in r.2.41 out must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s.140.
There are no persons who would be affected by consequential cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement obligations or family unity obligations.
As the applicant is the holder of a substantive visa, the cancellation would not lead to her removal from Australia. Issues relating to Australia’s non-refoulement obligations or family unity obligations therefore do not arise.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
Given the grant to the applicant of a Temporary Partner visa (subclass 820) on 6 December 2023, and with the prospect of an eventual grant of a Permanent Partner visa (subclass 801) in due course, the Bridging A visa cancellation would have negligible impact, and no mandatory legal consequences.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
Following the grant to the applicant of a Temporary Partner visa (subclass 820), without conditions on 6 December 2023, she has been able to resume visits to Indonesia.
As discussed at hearing, the only discernible impact of the visa cancellation at this stage would be that this would be noted on her migration record, and be somewhat unsettling.
The Tribunal accords these factors minimal weight against cancelling the visa.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. It has had regard to the applicant’s written and oral evidence, and submissions and supporting documents, together with the prescribed circumstances set out in reg. 2.41 and other relevant matters.
Having found that there was non-compliance, it has weighed the considerations against and in favour of the visa cancellation.
For the reasons stated above, the Tribunal finds that the applicant gave incorrect information by declaring that she was a genuine temporary entrant (but not in relation to her intended work as a pastrycook). It considers that she has compounded this by being less than forthright in her evidence to the Department and the Tribunal. Nonetheless, it notes that this non-compliance took place over four years ago, and that the applicant’s circumstances have changed significantly, particularly as a result of her relationship with Mr Callahan, her ties to his children and her continued integration into the community. Following the grant to her of a temporary partner visa in December 2023, it also considers that there is little utility in the cancellation of a Bridging A visa granted in association with that substantive visa application.
The Tribunal has decided to place greater weight on the factors against cancellation, taken cumulatively, as these are marginally stronger than the factors in favour of cancellation.
After careful consideration of the prescribed circumstances and other relevant matters, the Tribunal concludes that the visa should not be cancelled.
Conclusion
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 Silva
MemberATTACHMENT – 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.
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‑compliance
The 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.
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