Gan (Migration)

[2021] AATA 3553

Gan (Migration) [2021] AATA 3553 (17 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Seng Kok Gan
Ms Yoke Oi CHEW
Master Rui Shang Victor GAN
Master Rui Sheng Johann GAN

CASE NUMBER:  2011585

HOME AFFAIRS REFERENCE(S):          BCC2018/875161

MEMBER:Andrew McLean Williams

DATE:17 August 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first-named Applicant’s Subclass 186 - Employer Nomination Scheme visa.

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

Statement made on 17 August 2021 at 4:07pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – subclass 186 – applicant resigned from the nominated employment position – discretionary power to cancel the applicant’s visa does not arise – department was notified of material change in circumstances – sufficient compliance – decision under review set aside

LEGISLATION
Migration Act 1958, ss 104, 107,109

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 186 - Employer Nomination Scheme (‘ENS’) visa under s.109(1) of the Migration Act 1958 (‘the Act’).

2. The Delegate cancelled the visa on the basis of having concluded that the first-named Applicant had not complied with s.104 of the Act, by his having failed to notify the Department that he had resigned from the nominated employment position, on or about 13 December 2017.

3. The  ENS visa was granted to the first-named Applicant on 18 January 2018.

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

5. 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 other Subclass 186 ENS visas, as now held by other family members, were automatically cancelled in consequence of that primary visa cancellation. In other words, the other family members visas were cancelled not by force of any decision but rather by force of the operation of s.140(1) of the Act. As no ‘decision’ was involved, the Tribunal now has no jurisdiction with respect to these other applicants.

6. The Applicant and his wife appeared before the Tribunal on 17 June 2021 to give evidence and make submissions.

7. All of the Applicants were represented in relation to the review by their registered migration agent Mr Lester Ong of Munro Doig Lawyers. Mr Ong also attended the Tribunal hearing and had prepared and filed detailed written submissions dated 11 June 2021, together with supporting evidence.

8. 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

9. 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 to also notify the Department of any relevant changes in their circumstances.

10. The exercise of the cancellation power under s.109 of the Act is conditional upon 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.

11. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind so as to engage the cancellation power in s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

12. The issue before the Tribunal is whether there was non-compliance in the way described in the Notice of Intention to Consider Cancellation (‘NOICC’) (the s.107 notice), being the manner particularised in the notice, and if so, whether the visa should be cancelled.

13. The specific non-compliance alleged and particularised in the NOICC was non-compliance with section 104 of the Act, which provides:

    (1)If circumstances change so that an answer given to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer  in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances before the visa is granted.

    (3)…/

    (4)Subsection (1) applies despite the grant of any visa.

14. The Applicant is a Malaysian engineer and had been a long-term executive employee of MHE-Demag Malaysia (an industrial crane manufacturer), before accepting a role as the State Sales Manager – Western Australia for MHE-Demag Australia (‘MDA’). 

15. The Applicant arrived in Australia in May 2015 on a Subclass 457 visa as a ‘Sales and Marketing Manager’, sponsored by MDA.  The Applicant’s wife and two young sons later joined him in Australia, in June 2015, as secondary visa holders.

16. On 11 November 2016 the Applicant lodged the application for a Subclass 186 ENS visa, sponsored by the same employer, MDA.  This visa application was eventually approved by the Department, on 18 January 2018.

17. From about February 2017, the Applicant started to suffer from significant symptoms of anxiety and stress in the workplace.  Evidence produced before the Tribunal reveals this to have arisen in consequence of a host of unexpected technical engineering issues and a downturn in the market, coupled with various personnel changes at MDA.  Suffering enormously at the time under a crushing workload, the Applicant initially resigned his employment on 11 May 2017.  This resignation was however quickly retracted by the Applicant, and he was reinstated to his position as the MDA State Sales Manager - Western Australia.  Subsequently, the Applicant took periods of medical leave in both June and August 2017 in an effort to deal with his symptoms.  Unfortunately, the same stressors in the Applicant’s workplace persisted, such that for quite legitimate health reasons the Applicant eventually resigned altogether by means of notice to his employer given on 31 October 2017.  The Applicant’s last day of employment was then mutually agreed to be 13 December 2017.  Around that time the Applicant took further leave from his employment in order to prioritise his health.

18. As at the date of this ‘second’ resignation, the Applicant’s Subclass 186 ENS visa was still a matter under deliberation by the Department.  The visa was ultimately approved by the Department on 18 January 2018.  As things transpired the Applicant was therefore no longer actually employed by his sponsoring employer MDA as at the date of issue of the Subclass 186 ENS visa. 

19. Among other things, the Application for Permanent Employer Sponsored or Nominated Visa (‘visa application’) submitted by the Applicant on 11 November 2016 contains the following declaration, acknowledged at the time by the Applicant in the affirmative:

    “The applicants declare that they:

    ……Will inform the Department of Immigration and Border Protection in writing immediately as they become aware of a change in circumstances (including a change of address) or if there is any change relating to information they have provided in or with this application, while it is being considered.”

20. One of the requirements for a Subclass 186 ENS visa is that the Applicant agrees to take up the nominated position for at least two years after the grant of the visa.  By his having resigned from the nominated employment position in late 2017 the Applicant in effect withdrew his agreement to be employed for the required minimum period of two further years, such that this became a ‘change in circumstances’ of a kind that the Applicant had undertaken to inform the Department about, by his giving of the declaration on the visa application, as identified, above.  

21. The Applicant did not himself notify the Department of the fact of his resignation.  As becomes clear from his statutory declaration dated 11 June 2021, the Applicant was aware that his employer MDA would notify the Department of the change in his employment circumstances, and he had thereafter assumed that this notification would be sufficient in terms of meeting his requirement to inform the Department of any relevant changes in circumstances.  In this regard, a Ms Monika Boehm, Administration Manager of MHE Demag Australia Pty Ltd did advise the Department - by means of an e-mail sent on 10 January 2018 - that the Applicant had ceased his employment with the sponsoring employer with effect from 13 December 2017, and had CC’d a copy of that same e-mail to the Applicant, also on 10 January 2018.

22. Although conceding that an obligation arises under s.104 to notify the Department of the ending of employment, Mr Lester Ong, now appearing on behalf the Applicant submits that in these particular circumstances there has not been any breach of s.104 and the fact of Ms Boehm having notified the Department of the fact of the Applicant’s cessation of employment by means of her e-mail dated 10 January 2018 was sufficient compliance. Mr Ong submits that the manner of notification for any relevant change in circumstances is not prescribed by the Migration Regulations and it is not mandatory that changes be notified only by means of Form 1022 (‘Notification of change in circumstances’), such that any notification in writing is sufficient. Here, Mr Ong submits that the Applicant ought be entitled to rely upon the notification to the Department regarding the cessation of employment made by Ms Monika Boehm in her e-mail dated 10 January 2018, and that on that occasion Ms Boehm was in effect acting as the Applicant’s agent in order to communicate information regarding a material change in circumstances.

23. The Tribunal agrees with that submission. It is sufficient that the relevant information going towards a change in circumstances is communicated to the Department, and that may include by means of an applicant relying on the agency of another. The relevant information was thus communicated by Ms Boem on 10 January 2018, which was obviously prior to the date of the decision conferring the 186 ENS visa on the Applicant. In these circumstances it may hardly be claimed that the Department was not seized of the relevant information. That the relevant information was not internally communicated from one part of the Department to the relevant decision-making section prior to the granting of the visa is not a matter that can be attributed to any failure to make the relevant information known to the Department, and speaks more about an internal administrative deficiency within the Department than to any breach of section 104 by the Applicant.

24. For these reasons, the Tribunal finds that there was not an instance of non-compliance by the Applicant in the way described in the s.107 notice. It follows therefore that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

26. 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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    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.