Devi (Migration)

[2021] AATA 2657

Devi (Migration) [2021] AATA 2657 (28 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Neelam Devi
Mr Sagar Singh
Master Krish Punia
Ms Mehak

CASE NUMBER:  2014608

HOME AFFAIRS REFERENCE(S):          BCC2020/1704812

MEMBER:Andrew McLean Williams

DATE:28 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first-named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 28 May 2021 at 11:09am

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa– Subclass 187 – applicant provided false information and ‘bogus documents’ in support of her visa application – employer representative never prepared, signed or submitted the employment contract – applicant has never worked for Infotech Electro Solutions – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109,

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first-named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) and s.103 of the Act, having provided false information and ‘bogus documents’ in support of her visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first-named applicant (‘the applicant’). The visas held by the other applicants, as family members were  automatically cancelled as a consequence of cancellation of the visa of the first-named applicant, that is not by a decision, but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1) in the case of the other applicants, the Tribunal has no jurisdiction with respect to these persons.

4. The applicants were represented in relation to the review by their registered migration agent Mr Brian Park (MARN 0960412).  Mr Park has not filed any evidence, nor submissions on behalf his clients.

5. The applicants were scheduled to appear before the Tribunal on 1 June 2021.  On 27 May 2021 Mr Park e-mailed the Tribunal Registry, informing as follows:  “The AAT client instructed me to notify that she will not attend the Hearing, due to her medical condition.  She wants the Member to make a decision based on current information AAT holds”.  In light of the foregoing communication from the applicant’s duly authorised representative, these now are the reasons for decision given by the Tribunal ‘on the papers’ in determination of this application for review. 

6. For the following reasons, the Tribunal concludes that the decision to cancel the applicant’s visa should be affirmed by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 on passenger cards; not to provide ‘bogus documents’ as part of any visa application; to notify the Department of any incorrect information that has been submitted to the Department of which they become aware; and to also notify the Department of any relevant changes to their circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister first 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 now attached to this decision.

9. 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 necessary statutory requirements.

   Was there non-compliance as described in the s.107 notice?

10. The issue before the Tribunal is whether there was non-compliance of the type described in the s.107 notice and, if so, whether the visa should be cancelled.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with sections s.101(b) and s.103 of the Act, in the following respects:

    -The applicant had applied for a regional sponsored migration scheme (RSMS) visa to work for Infotech Electro Solutions Pty Ltd, in the nominated occupation of ICT Support Technician, as nominated on 12 April 2016 by Dhimant Rajendrakumar Patel (trading as Infotech Electro Solutions).  In support of that nomination, an employment contract dated 4 April 2016 was provided, as had ostensibly been signed by both the applicant and a Mr Chris Heneric as the General Manager of Infotech Electro Solutions.  The employment contract specified that the applicant’s employment role was to be located at 3/47 Verney Street Kings Beach 4551.  Yet, evidence obtained by Australian Border Force confirms that Mr Chris Heneric has no association of any type whatsoever with Infotech Electro Solutions, and that he did not produce, sign or caused to be signed or submit the employment contract dated 4 April 2016, despite his recognising the signature on that contract to be his own signature.  Other evidence obtained by Australian Border Force shows that Infotech Electro Solutions has never occupied or operated from premises located at 3/47 Verney Street Kings Beach 4551, and that the applicant has never worked for Infotech Electro Solutions from that address at Kings Beach.

12. In light of the foregoing evidence and information, the Tribunal concludes that incorrect information was given by the applicant to the Department as part of her visa application in breach of s.101(b), and that a fabricated or ‘bogus’ document, in the form of the employment contract ostensibly signed by Mr Chris Heneric, was furnished by the applicant in support of her RSMS visa application, contrary to s.103.

13. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.103 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

14. 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).

15. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and to have regard for any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, these are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

16. While these factors 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.

    Applicant’s Response to the s.107 Notice:

17. The applicant was sent a notice under s.107 on 14 August 2020 and made a response to it on 28 August 2020.  In that response the applicant submits that she commenced employment with Infotech Electro Solutions on 9 January 2017, yet worked ‘remotely’ on ‘various projects’ on a working-from-home basis, until 1 February 2019.  The applicant did not however provide any details of those work projects, and did not provide sufficiently reliable corroborative evidence in support of her contention regarding her employment by Infotech Electro Solutions.

    Consideration of the Prescribed Circumstances: 

18. The applicant claims to have lived and worked in Gatton (postcode 4343) since January 2017, and to have integrated herself and her family into that community; and states that visa cancellation would now have long-term negative impacts on her and her family.  The applicant also stated that she had complied with her visa conditions to the best of her abilities, given the circumstances.  In relation to the prescribed circumstances set out in r.2.41 of the Migration Regulations, the Tribunal notes as follows:

    The Correct Information:

19. The correct information is that the applicant has never worked for Infotech Electro Solutions, such that her RSMS visa contains incorrect information.  The Department has since obtained determinative evidence that the claimed employer representative never prepared, signed or submitted the employment contract underpinning that claimed employment, such that the RSMS visa application included a bogus document.  This circumstance must be given very considerable weight in favour of visa cancellation.

    The content of the genuine document:

20. There is no genuine document, and that used to substantiate the claimed employment arrangement in this case is a fabrication.  This circumstance must give rise to very considerable weight in favour of visa cancellation.

    Whether the decision to grant the visa was based wholly or partly on incorrect information or bogus documents:

21. The granting of the applicant’s RSMS visa was substantially as the result of false information and bogus documents.  Had the department known the true state of things at the time of assessing the original visa application, it appears unlikely that the visa would have been granted.  This circumstance must be given considerable weight in favour of visa cancellation.

    The circumstances in which the non-compliance arose:

22. The non-compliance arose in circumstances of a deliberate attempt to create false documents and convey false information so as to give rise to a misleading basis for belief that this sponsored regional employment opportunity was genuine. That circumstance must now be given very considerable weight in favour of visa cancellation.

    The present circumstances of the applicant:

23. The applicant and her family have been residing in Gatton in the Lockyer Valley region in Queensland, since 2010.  Both the applicant and her husband are employed by Rugby Farms Pty Ltd, a large-scale farming enterprise.  The applicant works as a labourer in a packing shed, and her husband is employed as a supervisor.  The applicant’s children have resided in Gatton, yet movement records also reveal the applicant’s children to have spent substantial periods of time in India since their first arrival in Australia.  The applicant and her family have applied for Australian citizenship.  These circumstances do give rise to a small amount of weight against visa cancellation.

    The subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act:

24. There is no evidence contrary to the Tribunal now concluding that the applicant has been compliant as regards her obligations under this part of the Act. These circumstances do give rise to a small amount of weight against visa cancellation.

    Any other instances of non-compliance by the applicant known to the Minister:

25. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.  These circumstances do give rise to a small amount of weight against visa cancellation.

    The time elapsed since the non-compliance:

26. The visa application was lodged on 13 April 2016.  The Department became aware of the non-compliance in August 2020.  These circumstances have only a neutral bearing on the question of visa cancellation in the circumstances of this matter.

    Any breaches of the law since the non-compliance and the seriousness of those breaches:

27. There is no evidence before the Tribunal in relation to any other breaches of the law since the date of the breaches of s.101(b) and s.103.  These circumstances do give rise to some deliberative weight against visa cancellation.

    Any contributions made by the applicant to the community:

28. The only evidence before the Tribunal is to the effect that the applicant and her husband are each employed in the Gatton region.  These circumstances are neutral in terms of impact on the question as to whether the visa should be cancelled.

    Any other matters:

29. On the facts known to the Tribunal there do not appear to be any relevant obligations arising under international agreements to which Australia is now a signatory, nor any impacts arising under the Convention on the Rights of Children or under the International Covenant on Civil and Political Rights (ICCPR).  As such. these factors have a neutral bearing on the question of visa cancellation.

30. It is a relevant other matter to note that there are family members in Australia whose visa will or may be cancelled consequentially, and that the result of visa cancellation is that the applicant and her family may thereby become unlawful non-citizens, liable to immigration detention and forced removal from Australia if they do not leave voluntarily.  In addition, if the applicant’s visa is cancelled under s.109, the result will be that the applicant will become subject to s.48 of the Act such that she will have limited options to apply for a further visa whilst in Australia. These are all now factors that do give rise to some weight against visa cancellation.  It is also relevant to consider that the applicant and her family may then suffer some economic and/or psychological hardship if required to relocate back to India after having spent approximately ten years in Australia.  These factors should be accorded some further weight in favour of non-cancellation of the applicant’s visa.

31. Ultimately the Tribunal determines that those discretionary factors that now lend weight to a decision by the Tribunal against visa cancellation are not enough to now outweigh those other discretionary factors that lend weight to the need for cancellation of the applicant’s visa.

32. 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 be cancelled.

    DECISION

33. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

34. The Tribunal has no jurisdiction with respect to the other applicants.

    Andrew McLean Williams
    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.

    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.