Guo (Migration)

[2022] AATA 2744

Guo (Migration) [2022] AATA 2744 (9 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dongqi Guo

REPRESENTATIVE:  Mr Da Wei David Gu

CASE NUMBER:  2200176

HOME AFFAIRS REFERENCE(S):          BCC2019/4944365

MEMBER:Kira Raif

DATE:9 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 189 -  Skilled - Independent visa was not cancelled.

Statement made on 09 August 2022 at 11:32am

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) visa – incorrect information and bogus document provided with visa application – validity of department’s notice of intention to consider cancelation – first notice sent to last known address – anomalies with postal registration – second notice sent to incorrect address – second notice replaced first notice, so first notice cannot be relied on – second notice invalid, so power to cancel visa did not arise – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 101, 103, 107, 109(1)

Migration Regulations 1994 (Cth), r 2.55

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 applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in November 1990. He was granted the Skilled visa in February 2017. In August 2021 the applicant was purportedly issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act. The applicant did not respond to the NOICC and his visa was cancelled in October 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 August 2022  to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. 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.

   Relevant law

4. 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.

5. 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.

   Did the notice comply with the requirements in s 107?

6. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s 107. 

7. Information on the Department’s file indicates that  in July 2021 the delegate wrote to the applicant seeking information about his current address and contact details. It is not apparent that the applicant replied to that correspondence and the applicant explained to the Tribunal that he had not used either of the two email addresses to which the communication was sent and did not receive it.

8. In July 2021 the first NOICC was sent to the applicant to a Waterloo address. The applicant’s evidence to the Tribunal is that he did live at that address until about 2020 when he moved to a different address but had not informed the Department, as he did not realise he was required to do. The advice from the Department indicates that the Waterloo address was obtained from the applicant’s Incoming Passenger Card (which would be his proposed address in Australia rather than the last known address where the applicant was residing) and it may be that the first NOICC was sent to the last known address. The Tribunal acknowledges the applicant’s evidence that the postcode was incorrectly specified as 2018 (rather than the correct postcode 2017) but in the Tribunal’s view, the use of an incorrect postcode may not be sufficient to invalidate the notification if the letter was, or could have been, delivered. It appears that the first NOICC may have been properly issued.

9. However, in August 2021 the delegate issued the second NOICC because the delegate determined there were some anomalies with the postal registration of the envelope used for the first NOICC. The second NOICC correspondence went to a different address that was used in the first NOICC and there appears to have been a typographical error in the unit number used in that correspondence. It appears clear that the second NOICC used an incorrect address and was not sent to the applicant’s last known address.

10. Whether or not there was a reasonable justification for issuing the second NOICC (as the operation of the Australia Post is not something that should affect the issuance of the NOICC), the Tribunal has formed the view that the second NOICC replaced (as it was intended to) the first NOICC and rendered the first NOICC null and void. That is, the first NOICC cannot be relied on as a valid notification of the delegate’s intention to cancel and the second NOICC was clearly sent to the wrong address and not the last known applicant’s address.

11. For these reasons, the Tribunal has formed the view that the applicant has not been issued with the NOICC in accordance with r. 2.55. The Tribunal finds that the notice was not a valid notice for the purposes of s 107. As a valid s 107 notice is a precondition to the exercise of the power under s 109, the power to cancel the visa did not arise.

12. The Tribunal acknowledges that there is nothing preventing the Minister’s delegate from re-exercising the power under s. 109 but that is not a matter for this Tribunal.

    Conclusion

13. The Tribunal has considered the information before it and has found that the notice purportedly issued under s 107 of the Act was not a valid notice. As a valid s 107 notice is a precondition to the exercise of the power under s 109, there was no power to cancel the visa. It follows that the delegate’s decision to cancel the visa must be set aside.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s Subclass 189 -  Skilled - Independent visa was not cancelled.

    Kira Raif
    Senior Member