Harty (Migration)

[2017] AATA 2490

Harty (Migration) [2017] AATA 2490 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Denis Timothy Harty

CASE NUMBER:  1608900

DIBP REFERENCE(S):  BCC2015/3787798

MEMBER:Jan Redfern (Presiding)

Hugh Sanderson

DATE:4 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass (155) (Five Year Resident Return) visa.

Statement made on 4 December 2017 at 2.15 pm

Catchwords

Migration – Subclass 155 (Resident Return) visa – permanent residence (Subclass 856 Employer Nomination Scheme) – nominated occupation as a Project Coordinator – cancellation under s.109 – cancellation of visa following audit and sponsorship bar of the nominating employer – whether incorrect information provided – finding that information provided not incorrect – non-compliance in way described in s.107 notice not established – power to cancel visa does not arise – cancellation set aside

Legislation

Migration Act 1958, ss 101, 103, 107, 109(1), 362A
Migration Regulations 1994

Cases
Zhao v MIMA [2000] FCA 1235
Briginshaw v Briginshaw (1938) 60 CLR 336

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 Immigration and Border Protection to cancel the applicant’s subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate found that the applicant had provided incorrect answers and bogus documents in support of his visa application for the subclass 856 Employer Nomination Scheme visa. Further, the delegate found the reasons to cancel the visa outweighed the reasons not to cancel the visa. 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. We have concluded that the ground for cancellation has not been made out and the decision to cancel the applicant’s visa should therefore be set aside. Our reasons follow.

Background

1. The applicant is a citizen of Ireland and is currently 35 years old. He first entered Australia holding a subclass 417 Working Holiday visa in 2005. He was granted a subclass 457 Business (Long Stay) visa in 2007. Following an application made on 20 November 2009, the applicant was granted a subclass 856 Employer Nomination Scheme visa on 19 May 2010. He was granted a subclass 155 Resident Return visa on 27 May 2015.

2. The applicant was nominated in his application for his subclass 856 visa by his employer, Pipe and Civil Constructions Pty Ltd (Pipe and Civil), which subsequently became Murphy Pipe and Civil Pty Ltd (Murphy Pipe and Civil). The occupation he was being nominated for was Onsite Project Coordinator/Drainage. The applicant provided various documents in support of the application, including a letter from Pipe and Civil stating that the applicant would be promoted to Onsite Project Coordinator from his original position as drainer and an Employment Agreement confirming his position as Onsite Project Coordinator/Drainage, with the appointment to commence on the approval of the visa. The agreement was signed by the applicant on 23 October 2009 and on behalf of Pipe and Civil on 5 November 2009.

3. Based on this information and other information provided by the applicant he was granted the subclass 856 Employer Nomination Scheme visa on 19 May 2010. The applicant travelled to Australia in 2006 on a working holiday visa and has been working in Australia since that time. Prior to coming to Australia, the applicant worked as a drainer in Ireland for approximately five years. He joined Pipe and Civil in 2007 and has worked for this company, which became Murphy Pipe and Civil, since this time. The applicant is currently employed with Murphy Pipe and Civil in the UK as a General Superintendent. He has held this role since 2015 and is responsible for a current workforce of approximately 240 employees.

4. The Department of Immigration and Border Protection (the Department) conducted an audit of Murphy Pipe and Civil, which commenced in August 2014. As a result of this audit, a delegate of the Minister made a decision under s.140M of the Act to bar Murphy Pipe and Civil from making future applications for approval as a standard business sponsor. Murphy Pipe and Civil sought review of this decision. The Tribunal upheld the bar, but varied the period. This decision has been published by the Tribunal (Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960). Following this decision, the Department reviewed the applications of a number of employees who had been sponsored by Murphy Pipe and Civil (and its predecessor), including the applicant. As a result of this audit, the Department considered the applicant had provided false and misleading information and bogus documents to the Department in support of his application for a subclass 186 Employer Nomination Scheme visa. A delegate of the Minister wrote to the applicant on 25 February 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act (NOICC).

5. The information identified by the delegate as being incorrect is the statement in the application form that the applicant was employed by Pipe and Civil from June 2008 as a Contract Project Coordinator/Drainage in accordance with the resume attached to his application. The delegate also identified the answers on page 9 of the application form in answer to questions 30 and 32 as being incorrect. The questions and answers are as follows:

   Q 30 What is the position you have been nominated to fill in Australia?

   Name of nominating business or organisation

   Pipe and Civil Pty Limited
   Job Title: Onsite Project Coordinator/Drainage
   Occupation: Contract Project Coordinator

   Q32 Give details of your employment history since leaving school (list your most recent experience first)

   From 19 June 2008 –

   Occupation/Position
   Drainer promoted to Onsite Project Coordinator – Drainage
   Employer and city
   Pipe and Civil Construction Brisbane

6. The documents provided by the applicant in support of the application which were identified by the delegate as being bogus were:

   (1)  an undated resume of the applicant’s employment history from June 2008 which noted that his occupation was Contract Project Coordinator – Drainage;

   (2)  a letter of support from Pipe and Civil dated 21 October 2009 signed by the applicant and James Campbell, director;

   (3)  an untitled letter requesting a waiver for the three year post qualification work experience criteria dated 30 November 2011 signed by James Campbell;

   (4)  an undated Employment Agreement which indicated the applicant would be employed in the nominated position of Onsite Project Coordinator – Drainage which was signed by the applicant on 23 October 2009 and by Pipe and Civil on 5 November 2009.

7. In essence, the delegate indicated in the NOICC that there was reason to believe that the applicant did not undertake duties during the period 14 September 2009 to 19 May 2010 that correlated with the position description provided with his nomination. It was further noted that there was reason to believe the applicant primarily undertook duties associated with those of a plant or a mobile plant operator. The information provided was therefore said to be incorrect. The resume, letter of support, letter requesting a waiver and the Employment Agreement all indicated that the applicant would be employed in the nominated position of Contract Project Coordinator. However, according to the delegate given the information uncovered through the audit of Murphy Pipe and Civil, these documents were bogus because they contained some misleading statements to gain a favourable immigration outcome for the applicant.

8. The applicant responded to the NOICC by providing various documents including a statement by him, letters of support detailing the work undertaken by the applicant from 2007 and his payslips. In summary the applicant submitted as follows:

   (1)  He had provided correct information and the information and documents provided by him in support of his application were genuine and correct;

   (2)  It would be inappropriate to cancel the applicant’s visa until the review of the sponsorship bar was finally determined. Notwithstanding this, it was submitted that the investigation and action against Murphy Pipe and Civil was distinct and separate from the answers given by the applicant. The Department was seeking to impose non-compliance sanctions on the applicant because of the alleged actions of Murphy Pipe and Civil, which should not be attributed to him;

   (3)  The applicant remains employed by Murphy Pipe and Civil in a vital position as a General Superintendent;

   (4)  The applicant has been in a relationship with a Thai citizen and they have a child together who was born in September 2015. The applicant’s partner and child continued to reside in Thailand and are wholly financially dependent upon the applicant for their basic needs. Should the applicant’s visa be cancelled he would have no guarantee of employment in Ireland and this would substantially affect his financial capacity to care for his family. Any cancellation would have a direct impact on the applicant’s son and may result in an extended period of separation;

   (5)  The applicant has complied with all immigration requirements and has not committed any breach of Australia’s law;

   (6)  The alleged non-compliance occurred over five years ago;

   (7)  The applicant’s work with Murphy Pipe and Civil has been of value to the Australian community and his skill sets are not readily available in Australia;

   (8)  The applicant has a high income and pays his taxes .He has contributed to a number of charities. The applicant gave support during the Black Saturday bushfires in Victoria and during the Chinchilla floods in Queensland; and

   (9)  The applicant owns real estate in Australia and has established ties in Australia.

9. The delegate who considered the application noted the following issues:

   (1)  The applicant had requested a waiver of the three-year post qualification work experience as would ordinarily be required and there is no information or documents showing that the applicant had relevant qualifications to undertake the role of a Contract Project Coordinator;

   (2)  The applicant did not provide any payslips for the period prior to the grant of his visa;

   (3)  On his incoming passenger cards from 18 December 2008 to 6 April 2010 the applicant described his occupation as ‘operator’ or ‘plant operator’ and from 25 May 2010 until 15 July 2012 he described himself as ‘operator’ and ‘leading hand’ which is inconsistent with his claim that he was employed as a Contract Project Coordinator during the time he held his 457 visa;

   (4)  Based on the information the applicant was working for the duration of his 457 visa as a drainer and not a Contract Project Coordinator; and

   (5)  The VETASSESS definition of Project Coordinator states that ‘in order to be assessed positively for this occupation, occupants would need to demonstrate that their role is in the administration of the project or program, rather than the usual tasks for that occupation’. VETASSESS also noted that this occupation required a qualification which is assessed as comparable to the education level of an Australian Qualifications Framework (AQF) Diploma or higher or if there was no qualification three additional years of highly relevant employment.

10. Taking all these factors into account, the delegate concluded at [25] to [27] that the applicant had not worked as a Contract Project Coordinator for the duration of his subclass 457 visa but rather as a drainer and therefore the information provided in the application for the subclass 856 visa was false and the documents provided in support of that application were bogus.

11. The delegate then considered whether the applicant’s visa should be cancelled. The delegate took into account the issues raised by the applicant. The delegate found that if the correct information had been provided it is unlikely the applicant would have been granted a subclass 856 visa. The delegate noted the present circumstances of the applicant, namely, that he remained employed by Murphy Pipe and Civil; he is in a relationship with a Thai citizen and they have a child together, both of whom reside in Thailand and are financially dependent on him; the applicant considers Australia his home and owns three properties in Perth and he had applied to become an Australian citizen in October 2014. The delegate gave some weight to these matters. The delegate also noted that there was no information which would indicate the applicant has provided incorrect information and bogus documents to the Department or any other instances of non-compliance or any information that he has broken Australian law. The delegate gave some weight to the fact that it had been six years since the applicant filed his subclass 856 visa application and that the applicant had made some contributions to the Australian community and charity donations.

12. The delegate also noted that if the applicant’s visa is cancelled, he would have limited options to be able to remain in Australia. The delegate considered whether cancellation of the visa would result in the breach of Australia’s international obligations and concluded that it would not. In particular, in dealing with the Convention on the Rights of the Child, the delegate noted that the applicant’s child is eligible for Irish and Thai citizenship and has lived for most of his life with his mother in Thailand. The delegate also noted that the applicant’s child has never lived in Australia and if the applicant’s visa is cancelled this would not cause him to be separated from his child.

13. Taking all these factors into account, the delegate concluded that the reasons to cancel the visa outweighed the reasons not to cancel and accordingly issued a decision cancelling the applicant’s visa.

LEGISLATIVE FRAMEWORK AND QUESTIONS FOR DETERMINATION

1. 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.

2. 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.

3. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or that grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

4. While the Tribunal is not bound by the rules of evidence and the decision-maker is not bound to follow legal principles such as those set out in Briginshaw v Briginshaw,[1] in deciding whether the ground for cancellation is made out, it is appropriate to have regard to the nature of the allegations and the gravity of the consequences.  Relevant to the facts of this case, the cancellation of a permanent visa, where the visa holder has been residing in Australia for years, has serious consequences and, in our view, any factual findings should be based on logical and probative material.

   [1] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.

5. The questions for determination are therefore:

   (1) Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

   (2) If the answer to (1) is yes, was the notice valid?

   (3) If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?

   (4) If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING

1. The applicant’s agent provided submissions to the Tribunal, including the following:

   (1)  Documents relied upon by the Department dated after the applicant was granted his visa are irrelevant;

   (2)  The resume relied upon does not have information as to the purpose for that document being created and cannot be relied on;

   (3)  Work classifications were dependent upon the project being worked upon and are not necessarily indicative of the type of work;

   (4)  The work type provided in the union membership application was consistent with the applicant’s past work experience;

   (5)  As a Project Coordinator/Supervisor the applicant was required to hold tickets for the work that was being done by other employees and hold appropriate occupational workplace health and safety training certificates and they do not indicate that he was not employed as a Project Coordinator;

   (6)  The applicant had accurately described his work history and proposed employment in the application, taking into account the advice he received from his migration agent;

   (7)  The application and letter of support accurately state the applicant’s position as ‘Onsite Project Coordinator/Drainage’ to ensure that both elements of the role were captured;

   (8)  The VETASSESS criteria is irrelevant as the applicant was dependent upon his work experience and not academic qualifications and no skills assessment was required; and

   (9)  The applicant had 10 years’ experience as a drainer which qualified him for the position of Project Coordinator.

2. The Tribunal was provided with the Department file which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.

3. The Tribunal conducted a telephone directions hearing on 28 June 2017, as a result of which, the applicant provided further evidence and submissions in support of the claims.

4. The applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. Set out below is an outline of his evidence.

5. The applicant provided details of his work history. He worked as a drainer in Ireland from 1999 until he travelled to Australia in 2006 on a working holiday visa. He commenced work with O’Brien Civil Pty Ltd in 2007 as a drainer. As there was no full-time foreman all the members of the crew undertook that role to some extent. Due to his enthusiasm for the position and his ambition, he was more eager than most to take on these responsibilities. He was not officially made a foreman at that time but took on the responsibilities. The description of his role in the resume, which was attached to his application, was therefore accurate. The applicant provided a letter from O’Brien Civil Pty Ltd dated 14 October 2009 which stated that the applicant joined the company as a drainer but over time progressed to the position of foreman. The duties described in this letter are consistent with the duties set out in the applicant’s resume attached to his application.

1. The applicant said that when he started work for Pipe and Civil in 2008 it was in the position of a drainer. He said that after working there for about two years he was given a promotion to Project Coordinator but his formal appointment to this role was subject to the approval of his Employer Nomination Scheme visa. The letter from Pipe and Civil dated 21 October 2009 confirms the applicant’s promotion to Onsite Project Coordinator and the Employment Agreement signed by the applicant on 23 October 2009 and by Pipe and Civil on 5 November 2009 expressly stated that the appointment date for the position of Onsite Project Coordinator/Drainage was to commence on the approval of the visa application. The applicant said that although he had not been formally appointed as a Project Coordinator at the time of the letter, his capacity to do this work had been recognised as he took on these responsibilities as a drainer without any formal appointment. By the time his appointment commenced as provided for in the Employment Agreement, he was already doing many of the tasks set out in the letter. The applicant said that letter and the Employment Agreement needed to be read together and he believed it was clear he would not be commencing this role until after his visa had been approved.  The applicant therefore denied he had provided any incorrect information or that the documents provided were bogus.  This evidence was consistent with the statutory declaration provided by the applicant in response to the NOICC

2. The applicant said that after he was granted the visa he was given the role of Project Coordinator and given a pay rise.

3. The applicant also provided details of the work sites he worked on and his pay structure, which was consistent with his evidence about his various promotions while working at Pipe and Civil and then Murphy Pipe and Civil. The applicant provided details of his current situation, which was also consistent with the information provided by him in response to the NOICC.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 (being the NOICC referred to above) complied with the statutory requirements.

2. The critical issues before the Tribunal are, therefore, whether there was non-compliance in the way described in the s.107 notice and, if so, whether the visa should be cancelled.

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

1. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 by providing incorrect answers in the visa application and s.103 by providing bogus documents in support of the application.

2. The allegation raised by the Department was that the applicant had ‘indicated’ in his application that he was employed from 19 June 2008 to the time of the application in the nominated position of ‘Contract Project Coordinator’ and that this answer in the application form was incorrect. It was further alleged that the documents provided in support of that application, including the letter of support from Pipe and Civil dated 21 October 2009 and other documents provided in support of the application indicated that he was employed as a Contract Project Coordinator and were therefore bogus documents.

3. The evidence of the applicant given at the hearing was that prior to the grant of the Employer Nomination Scheme visa, he was not appointed as a Project Coordinator, although he had taken on additional responsibilities and he was to be promoted to this position once his visa was approved. He claimed that the information that he had provided in his application and the documents he provided in support of the application when considered together show that his primary occupation was a drainer and that he was given a promotion to Project Coordinator, subject to the grant of the visa. This information was correct at the time of the visa application.

4. The answers the applicant gave to question 32 in the application in respect of his employment history do not state that he was employed from June 2008 in the occupation of ‘Contract Project Coordinator/Drainage’ as is stated in the NOICC. In answer to that question, the applicant stated that his position was ‘Drainer promoted to Onsite Project Coordinator/Drainage’. The applicant makes no claim that he was employed as a Project Coordinator from June 2008. He claims that by the time of the application he was undertaking additional responsibilities in anticipation of his promotion but it was the intention that he would not take on this role until the visa had been approved.  This was clear from the Employment Agreement that was provided with the letter from Pipe and Civil and with his application. This agreement was signed by the applicant on 23 October 2009 and the appointment date for the position of Onsite Project Coordinator/Drainage was stated to be on the approval of the visa application.

5. Even if it may be considered the answer the applicant gave to question 32 in the application was ambiguous when he stated his employment at Pipe and Civil was ‘Drainer promoted to Onsite Project Coordinator/Drainage’, when this answer is read with the Employment Agreement attached to the application and provided to the Department, it is clear that he was working as a drainer and was to be promoted to Project Coordinator but this was subject to his 856 visa being successful. This is consistent with the applicant’s evidence at the hearing and with his response to the NOICC.

6. The resume provided by the applicant to the Department with the application provides details of his ‘main tasks and duties’. We accept, based on the evidence of the applicant corroborated by documents provided by him, that he undertook those tasks and duties as specified. The only evidence to the contrary is the Pipe and Civil records referred to in the decision of the delegate that describe the applicant as a ‘plant operator’. Those records relate to periods prior to the application and are not inconsistent with the information provided by the applicant about his role as a drainer. We give little weight to the description nominated by the applicant on his incoming passenger cards. The reference to ‘operator’ or ‘leading hand’ is broad enough to cover the applicant’s role and the fact he did not describe his role as a ‘Contract Project Coordinator’ in the limited space available on the form does not support a finding that the applicant was not undertaking that role at the relevant time. Relevantly, such a document could not outweigh the clear evidence of the applicant’s signed Employment Agreement or the applicant’s evidence, which was supported by other documents and was consistent with his salary. We therefore find that the information provided in the resume was not incorrect nor was it a bogus document.

7. The details of the tasks undertaken by the applicant in his resume include what could be described as ‘administrative tasks’. Based on the evidence of the applicant, we accept that he undertook administrative as well as operational onsite tasks, which was his primary role until his formal promotion to Onsite Project Coordinator. Ultimately, these matters do not establish that there has been non-compliance.

8. Firstly, we find, based on the evidence before us, that the information and documents provided by the applicant to the Department at the time of his application for the subclass 856 Employer Nomination Scheme visa were not incorrect or false and misleading. At best the letter from Pipe and Civil was ambiguous as to when the appointment of Onsite Project Coordinator would commence but this would have been apparent from the Employment Agreement provided with the application. The applicant provided this information and if the Department required more information or had concerns this could have easily been clarified at the time of the application. The visa was granted on the basis of this information and the finding by the delegate that the visa would not have been granted cannot therefore be sustained.  The information was not incorrect nor was it bogus. 

9. Secondly, the delegate relied on the VETASSESS definition of Project Coordinator. This is irrelevant for two reasons.

10. VETASSESS is a vocational education and training assessment provider. If the Department requires an applicant to have an assessment or if an applicant chooses to obtain an assessment to facilitate the processing of their application, applicants may use VETASSESS for this assessment.  In this case, the applicant was not required to undertake a skills assessment and it is clearly stated in his application that he did not have one.

11. Furthermore, the interpretation of Project Coordinator by VETASSESS refers to the description of Project Coordinator set out in the Australian and New Zealand Standard of Classification Occupations (ANZSCO). ANZSCO was developed in 2006 and is a skill-based classification of occupations for all jobs in the Australian workforce. Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO. The ANZSCO description of the occupation of a Project Coordinator is set out in ANZSCO 5111 and relevantly provides as follows:

    Project Coordinator

    Plans and undertakes administration of organisational programs, special projects and support services.

12. The position of Project Coordinator in ANZSCO is a general description that covers a broad and diverse range of occupations and industries and does not restrict the role to undertaking office or purely administrative work. The skills assessment formula used by VETASSESS does not form part of the position description in ANZSCO nor was it part of the application.

13. Given these matters, it is difficult to understand why the VETASSESS criterion was considered probative or relevant and why the delegate placed weight on the fact that the applicant did not satisfy what VETASSESS considers necessary to be a Project Coordinator.

14. Thirdly, the decision under review is the cancellation of a visa. As such, the decision-maker needs to be positively satisfied that the grounds of cancellation are established. It is not for the applicant to disprove the allegations made.  In this case, we are not so satisfied. The Tribunal has had the advantage of questioning the applicant. He presented as a genuine and truthful witness before the Tribunal. He gave credible evidence as to his work history both prior to the application and since he was granted the visa. He presented as an ambitious person who was willing to undertake additional roles and responsibilities in the work he was allocated in order to further his own career. This included taking responsibility for his crew’s performance and work although he was not specifically employed for that role. This is reflected in the information contained in the applicant’s resume and the reference provided by Pipe and Civil dated 21 October 2009.

15. In summary, the Tribunal finds that the information provided by the applicant was not incorrect. We also find that he did not provide bogus documents in support his application. The applicant stated that his position was a drainer from 19 June 2008 and he was promoted to Project Coordinator. The Employment Agreement that the applicant provided with the application makes clear that his position as Project Coordinator would commence on the approval of the visa application. The applicant’s resume and reference from his employer clearly sets out that he was employed as a drainer and over the time had undertaken supervisory roles as part of his work. There is no claim that his position from June 2008 was solely as a Project Coordinator or that he was not employed as a drainer. The position of Project Coordinator had been offered to him on the basis of his 10 years relevant experience in the industry and his work experience at different job sites. He had been offered that position and accepted that offer subject to the approval of the visa.

Conclusions

1. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

2. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass (155) (Five Year Resident Return) visa.

Jan Redfern
Deputy President

Hugh Sanderson
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

1. Interpretation

   (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.

2. Interpretation

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).

1. 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 if it is otherwise filled in on his or her behalf.

2. Information 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.

3. Incorrect 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.

4. Visa 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.

5. Bogus 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).

6. Notice 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.