Haymes (Migration) - [2020] AATA 4854

Haymes (Migration) [2020] AATA 4854 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr William L Haymes
CASE NUMBER:  2002479
DIBP REFERENCE(S):  BCC2019/5316446
MEMBER:Antoinette Younes
DATE:26 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 26 August 2020 at 1:21pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – health condition – error on the agent’s part – sufficiency of notification – consideration of discretion – grant of visa not based on incorrect information – circumstances giving rise to non-compliance – conduct of the former agent – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 101, 105, 107, 108, 109
Migration Regulations 1994 (Cth), r 2.41
CASES
Brar v MIAC [2012] FMCA 519
Gido-Christian v MIAC [2007] FMCA 825
MIAC v Brar (2012) 201 FCR 240
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 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.
The applicant appeared before the Tribunal on 20 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses, namely the applicant’s partner and employer.
The applicant was represented in relation to the review by his registered migration agent.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haymes (Migration)

Details

AGLC: Haymes (Migration) [2020] AATA 4854
Case: [2020] AATA 4854
Decision Date: 26 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute arose from allegations that the applicant had provided incorrect information in their visa application, specifically concerning a health condition, which constituted a failure to comply with section 101 of the Migration Act 1958.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101 of the Act by providing incorrect information in their visa application, and if so, whether the visa should be cancelled. This involved assessing whether the decision to grant the visa was based, wholly or partly, on incorrect information, considering the circumstances in which any non-compliance occurred, and evaluating the present circumstances of the visa holder.

The Tribunal found that while the applicant had technically failed to disclose a medical condition in their application, thereby breaching section 101(b) of the Act, the decision to grant the visa was not demonstrably based on this incorrect information. The Tribunal considered it plausible that the applicant would have met the relevant health criterion had the correct information been disclosed, particularly given the support of their employer and the possibility of further medical examinations. Crucially, the Tribunal gave significant weight to the fact that the non-compliance was due to the error of the migration agent who completed the application, rather than deliberate deception by the applicant. The applicant had acknowledged their imprudence in trusting the agent without thorough verification. Considering the agent's professional obligations and the applicant's current circumstances, including their efforts to secure new employment, the Tribunal concluded that cancelling the visa would be unduly harsh.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 s.101 of the Act. Section 101 provides that:Visa applications to be correctA 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. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record. In the course of the hearing, the Tribunal referred to the relevant parts of the decision record, including:·On 20 June 2016, the applicant was nominated by Estee Lauder Pty Ltd (the sponsor) in the nominated occupation of Information and Organisation Professionals nec. On 10 May 2016, the applicant lodged an online application for a Temporary Work (subclass 457) visa. On page 4 of that application under the Health declaration, the applicant answered No to the following question:During your proposed visit to Australia, do you, or any other person included in this application, expect to incur medical costs, or require treatment or medical follow-up for:–blood disorder–cancer–heart disease–hepatitis B or C and/or liver disease–HIV infection, including AIDS–kidney disease, including dialysis–mental illness–pregnancy–respiratory disease that has required hospital admission or oxygen therapy–other. On pages 10 and 11 of the application form, under the heading Declaration for all applicants, the applicant acknowledged the following matters when he declared Yes:I declare that:·The information provided in this form is complete, correct and up-to-date.·I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time.·I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.·I and any other applicants included in the application has made adequate arrangements for health insurance during the period of my/our intended stay in Australia and I will provide a letter from my insurer confirming this. For more information and a copy of the certification letter click here.·I will abide by the conditions of the visa. For more information on the conditions of the visa click here.

Decision

Reasons for decision

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. 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 applicant’s Subclass 457 (Temporary Work (Skilled)) visa.Antoinette YounesSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

The Tribunal gives this aspect neutral weight. ·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 In submissions to the Tribunal, it was argued that the applicant would have met PIC 4006A. The applicant is [healthy], fit and well according to the applicant’s physician but even if he had failed, his employer would have indemnified his expenses with a waiver on various bases. The Tribunal is satisfied that had the correct information been disclosed, the applicant would have been required to undergo required medical examinations. The Tribunal can only speculate as to whether the applicant would have met the relevant health criterion (PIC 4006A), however, he would have had the opportunity to make submissions and get the support of his employer. The Tribunal is satisfied that it is plausible that the applicant would have met the relevant criterion. The Tribunal gives regard to the evidence of the witness who was successfully sponsored for a subclass 457 by the same entity and while he [had Medical Condition 1]. Although the fact that the applicant’s [Medical Condition 1 diagnosis] was not disclosed in the application for the subclass 457 visa meant that he did not undergo the required heath examinations, the Tribunal is not satisfied on the evidence that the decision to grant the visa was based, wholly or partly, on incorrect information. The Tribunal is satisfied that it is plausible that the applicant would have met the relevant heath criterion and would have been granted the visa. The Tribunal gives this aspect weight in favour of the applicant.·the circumstances in which the non-compliance occurred The non-compliance occurred when the applicant’s [Medical Condition 1 diagnosis] was not disclosed in the visa application, in breach of s.101(b) of the Act. In submissions to the Tribunal, the representative provided an outline of the applicant’s background and the circumstances that led to the cancellation of the visa. In essence, the submissions focussed on the conduct of the former agent who completed the subclass 457 application. The applicant has acknowledged his imprudence and has expressed remorse for not being more careful and in trusting the agent without checking the form. The Tribunal, and for the reasons stated has accepted those explanations. The conduct of the former agent in this case cannot be ignored. The agent was paid a fee to provide professional services in a competent manner with the legitimate expectation of due diligence and acting in the best interest of the applicant. In those circumstances, the Tribunal is of the view that it would be harsh not to give this aspect weight against cancellation. ·the present circumstances of the visa holder The applicant is currently the holder of a Bridging Visa E (BVE) granted on 11 February 2020 with work rights. He held his position with the sponsor until 2 September 2019. He subsequently found a new sponsor and a new nomination was approved on 5 March 2020. However due to COVID-19, the position with this sponsor became untenable. Currently, he is looking for work. The Tribunal observes that the applicant is a retail sales executive with a career spanning over 18 years with an international company that had sponsored him but due to a restructure, he was made redundant.