Ghimire Subedi (Migration)

Ghimire Subedi (Migration) [2022] AATA 4685 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sunita Ghimire Subedi
Mr Gunakhar Subedi
Miss Swastika Subedi
REPRESENTATIVE:  Mr Dhruba Dahal (MARN: 1383851)
CASE NUMBER:  2212077
HOME AFFAIRS REFERENCE(S):          BCC2022/242421
MEMBER:Noelle Hossen
DATE:20 December 2022
PLACE OF DECISION:  Perth
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 20 December 2022 at 3:45pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – incorrect information in the visa application – husband’s country of previous residence – removal from another country – strong social and community ties – financial hardship – best interests of the children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 97-105, 107-109, 111, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with Section 101(b) of the Act.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 visas were automatically cancelled as a consequence of that cancellation, 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), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on the 19 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Gunakhar Subedi.
The applicants were 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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with Section 101(b) of the Act which states in part:
Section 101     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.
In considering Section 101(b) of the Act, the Department also referred to Section 98, Section 99, Section 100 and Section 111 of the Act.
Section 98      Completion 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 it is otherwise filled in on his or her behalf.
Section 111 Cancellation provisions apply whether or not non-compliance
To avoid doubt, Sections 107,108 and 109 apply whether the non-compliance was deliberate or inadvertent.
Evidence of Non-Compliance
The applicant lodged an application for an Employer Nomination Scheme Visa. Her husband Gunakhar Subedi and their daughter Swastika Subedi were included as dependents of the applicants on the 1 November 2017.
On page 15 of the visa application form under the heading: “Previous countries of residence,” the form asked: “Have any of the applicants lived in a country other than the primary applicant’s usual country of residence? The visa holder answered:”, No”
On page 16 of the application form, under the heading:” Character Declarations, the form asked: Has the applicant been removed, deported or excluded from any country 9including Australia)? The applicant answered: “No”
The Department confirmed that Gunakhar Subedi applied for and was refused a residency permit in Belgium in 2010 and that he applied for asylum in Belgium in 2012 and was deported to Nepal in December 2012.
The applicant received a Notice of intention to Consider Cancellation was issued to the applicant on the 9 February 2022.The applicant responded on the 4 March 2022 and agreed that there was non-compliance.
Conclusion on non-compliance
For these reasons, the Tribunal finds that there was non-compliance with Section 101b) by the applicant in the way described in the s 107 notice.
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).
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 reg 2.41 of the Regulations. Briefly, they are:
· the correct information
The applicant advised the Department that she had provided incorrect information as she did not know at the time that she had completed the form that her husband had resided in Belgium, had applied for and was refused a residence permit and asylum.
The applicant and her husband had married after meeting in Nepal in 2012. She spent one month in Nepal and returned to Australia until 2013 to finish her studies. She returned to Nepal as soon as her visa expired. She had arrived in Australia in 2009 and had remained living in Australia. She had married another person when she was very young, and they had travelled to Australia on her student visa in 2009. The marriage broke down very soon after her arrival. She was of the view that her former husband had only married her to be able to travel to Australia. When she was in Australia in 2013, she applied for a divorce. She married her present husband in 2014. She said as it was an arranged marriage, she did not know much about him.
The husband gave evidence and said that his parents had moved to Belgium, but he had stayed behind in Nepal to finish his schooling. His parents became permanent residents of Belgium. After he finished school, he joined then in Belgium but as he was over the age of 18 years, he had to apply to live there. His mother is very close to him and wanted him to join the family in Belgium. His brother is also a resident of Belgium. Unfortunately, his visa was not granted. His father suggested he apply for asylum, so he did that, as he was only 19 years old at the time. He said that he regretted the decision to listen to his father as it was a mistake as he was not granted asylum.
He said he was then deported and that there was nothing sinister about it, as he was just trying to please his parents by residing in Belgium. He has never returned to Belgium although his family live there. He said that his parents did come and visit him in Australia in June 2022.
The Tribunal accepts the evidence of the applicant and her husband as they appeared to give their evidence in a forthright manner.
· the content of the genuine document (if any)
The Tribunal agrees with the Delegate’s Decision that no determination of the authenticity of the documents needs to be made in this case so that this consideration is not applicable
· 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 visa was based on incorrect evidence only. The Visa was granted without the Department having the ability to check the background of the applicant’s husband whilst he resided in other countries outside of his home country and Australia. As part of the Employer Nomination Scheme Visa Application Form 80 signed 10 /10/2017 Gunakhar failed to declare that he had resided outside of Australia and Nepal.
· the circumstances in which the non-compliance occurred
The applicant failed to declare that her husband Gunakhar had resided in Belgium between 2010 and 2012 in her Application being the Employer Nomination Scheme Visa Application. She incorrectly answered that he had never been refused a Visa, resided outside of Nepal for more than 12 months or had been deported to another country. He had applied for a residency permit and was refused asylum and residency. He was deported back to Nepal.
The applicant failed to advise the Department when she discovered that her husband had been refused a Visa to Belgium after her arrival in Australia and failed to advise the Department or to provide the correct information.
It is not clear from the evidence when she discovered that he had experienced these difficulties in Belgium.
The Tribunal does consider that this is a serious breach of their obligations to provide the correct information to the Department and does place weight on those facts in favour of cancelling the Visa.
· the present circumstances of the visa holder
In the delegate’s decision the delegate finds that the applicant is a full-time mother of two young children. The applicant provided to the Department a Confirmation of Enrolment that records that she is currently studying a Certificate III in Health Services (assisting in nursing in acute care).
Her husband appears to be employed in 2 jobs working as a supervisor cleaner and working for home and community care. He explained that he is working as a community worker helping elderly people who live independently in their home and organises their medical appointments and transport. He is also involved in community work on weekends for the Nepalese community. The applicant herself is working as a restaurant manager. She has held various jobs in the hospitality industry.
She told the Tribunal that her mother is presently in Australia as she has been successful in obtaining a visitor Visa. Her brother is also living in Australia are as he is a student.
She stated that she has very few family members who reside in Nepal at the moment. Her husband has the same situation as his family mostly reside in Belgium and his sister is married and lives in Norway.
The applicant has lived in Australia for most of the time since 2009. She returned to Nepal in 2013 until her return to Australia in 2015. She and her husband have no criminal convictions and the Tribunal found that their oral evidence was given in a truthful and forthright manner. They have been contributing to the Australian community and in the work that they do as volunteers within the Nepalese community.
The provided character references from witnesses who attest to their good character.
Their daughter’s Swastika is presently in Year two at Queens Park primary school. She is doing well at school. The youngest daughter was born on 2 May 2021 and she is an Australian citizen.
The decision to cancel the applicant’s Visa will disrupt the current course of study of the applicant. The move will leave the applicant and her husband without the ability to earn income to provide for their children. It is likely to disrupt their financial obligations. There is no doubt that it will cause financial hardship to the applicant and her family.
It will also be difficult for the children who have lived in Australia for most of their lives to assimilate in the Nepalese community in Nepal. The applicant indicated that presently she does not have any close family members residing in Nepal. Her husband’s family have also left Nepal. There is no evidence that they will be able to access accommodation upon their return. The Tribunal places considerable weight against the cancellation of the Visa on the facts contained in paragraph 31 to 38.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In the delegate’s decision it is noted that according to Departmental records, there is no evidence the applicant has made any effort to notify the Department prior to or after the grant of her Visa of the incorrect information provided in the Employer Nomination Scheme Visa application.
It is not clear from the evidence, when, the applicant became aware that the information that she provided in her Temporary Work Skilled Visa application that she made in 2014 was incorrect.
Upon being alerted by the Department that they were aware of the incorrect information the applicant and her husband have complied with all their obligations. They have accepted that the information contained in the Notice of Intention to cancel the Visa was incorrect.The Tribunal places some weight on those facts in favour of not cancelling the Visa.
· any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal to indicate that there are any other instances of non-compliance by the applicant which is not been discussed in this decision record.
The Tribunal places some weight on this consideration against cancelling the Visa
· the time that has elapsed since the non-compliance
The non-compliance with section 101(b) occurred on 1 November 2017 when the applicant lodged an Employer Nomination Scheme Visa application stating that her husband had never previously resided outside of Nepal or been refused a Visa or deported from any country. This information was incorrect. There has been a reasonable period since the non-compliance occurred, namely 10 years. The applicant and her family have resided in Australia since 2015 and have developed strong social and community ties during this period.
The Tribunal places significant weight on these considerations against the cancellation of the Visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that indicates that the applicant has breached any laws since the non-compliance occurred in 2017. The Tribunal places some weight on this consideration against cancelling the Visa
· any contribution made by the holder to the community.
The applicant and her husband provided letters of support from the Nepalese communities and local clubs that they belong to which attest to their good character. The Tribunal accepts the evidence that has been presented by the applicant and her husband as it confirms that they are hard-working and contribute to the Nepalese community through volunteer work.
The Tribunal places considerable weight on this fact against cancelling the Visa.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly 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.
The Visa of the applicant’s husband Gunahkhar and their eldest daughter Swastika will be consequentially cancelled under section 140(1) of the Act. The Tribunal places considerable weight on those facts against the cancellation of the Visa.
if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The applicant has two children and together with a husband provide for their care and well-being. The eldest daughter is not a citizen and would become a consequential cancellation if the Visa is cancelled. The applicant’s youngest daughter Darshika born on 2 May 2021 is an Australian citizen. Although it is likely that the family will return to Nepal it may well be that the applicant and her husband will choose to leave their daughter to remain living in Australia. They did mention that they were of the view that as she was an Australian citizen there will be some difficulties in applying for a visa for her to live in Nepal.
There may be some difficulties that arise in the future and the Tribunal is of the view that the applicant’s Visa if cancelled, may affect the best interests of the children. The eldest child is in Year 2 in school and her schooling has taken place in Australia and it will be difficult for her to reintegrate into a school in her home country.
The Tribunal places weight on the facts as contained in paragraph 52 and 53 against the cancellation of the Visa.
whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
There is no evidence before the Tribunal that would lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugee Convention, the CAT or the ICCPR.
There is no information before the Tribunal to indicate Australia has any other international obligations that may be impacted by the cancellation of the applicant’s Visa.
The Tribunal places some weight on the facts contained in paragraph 55 and 56 against cancelling the Visa.
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.
If the Visa was to be cancelled the applicant would become an unlawful noncitizen and could be liable for detention under section 189 and removal under section 198 of the act if she does not voluntarily depart. In addition, the cancellation will also place a limitation under section 48 of the act which means that the applicant will have limited options to apply for further visas in Australia.

The applicant may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary Visa for a specified period.
The Tribunal places some weight on those facts against cancelling the Visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
There are no other relevant matters in this consideration.
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 first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants
Noelle Hossen
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.
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.

[2022] AATA 4685

20 December 2022

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