Huseni (Migration) - [2025] ARTA 427

HUSENI (MIGRATION) [2025] ARTA 427 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Rukshar Mahmadzuned Huseni
Mr Mahmadzuned Jafarmiya Huseni
Ms Alizeh Huseni
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2449784

Tribunal:Kira Raif
Place:Sydney
Date: 3 February 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 February 2025 at 11:01am
CATCHWORDS
MIGRATION – cancellation – Subclass 190 (Skilled - Nominated) – incorrect information in previous student visa application – part-time work declared, and role as owner/director of company not declared – duties of small business company director – minimal involvement in day-to-day running of business – no question requiring disclosure of directorship – incomplete answer rather than incorrect – husband later took over directorship – real state of satisfaction required for cancellation – significance of employment to decision to grant visa unclear – decision made without hearing necessary – members of family unit husband and child – consequential cancellation of visas with no jurisdiction to review – younger child an Australian citizen – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109(1), 140(1)
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Salama v Minister for Immigration [2017] FCA 2
Zhao v MIMA [2000] FCA 1235
STATEMENT OF 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 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a national of India born in September 1992. She was granted a Student visa in September 2019 and a Skilled visa in November 2021. In October 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s 101 in relation to her Student visa. The applicant provided her response to the NOICC and her Skilled visa was cancelled in December 2024. The applicant seeks review of the delegate’s decision.
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 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.
No hearing was held in this case as the Tribunal was able to make a positive decision on the material before it. 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.
Relevant law
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.
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.
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Student visa in August 2019 where her husband and daughter were included as dependents. With respect to her employment, the applicant claimed in that application that she worked as a part-time accountant for Immi Solutions in Hobart.
The primary decision record indicates that the Department has since undertaken integrity checks in relation to the applicant’s claimed employment. The Department received advice from the ATO indicating that the applicant did not declare her employment as an accountant with Immi Solution to the ATO at the time she was seeking the Student visa. Rather, the ATO records indicate that between October 2018 and September 2019 the applicant was registered as a director of Immi Solutions Pty Ltd.
The Department also received advice from ASIC, which indicated that the applicant was registered as a director of Immi Solutions from October 2018 to September 2019 and from September 2019 her husband had been listed as a director.
The delegate determined that the applicant provided incorrect answers in relation to her Student visa application by claiming she was working as a part-time accountant and by not disclosing her role as a director and the owner of the company.
In her response to the NOICC the applicant stated that she was the original owner of Immi Solutions and her involvement was mostly strategic and to assist with the direction of the company, while her engagement in day-to-day management was minimal. The applicant stated that her major function was as part-time accountant and she was involved in managing financial records and maintaining financial regulations. The applicant stated that the strategic plan was for her husband to take over the leadership responsibilities, which he did in January 2019 and from September 2019 her husband was the sole director of the company. The applicant stated that she continued to be involved with Immi Solutions as an accountant and has complied with all visa conditions. The applicant denied providing incorrect or misleading information. The applicant also addressed, in her NOICC response, the discretionary considerations.
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. Essentially, the NOICC refers to the applicant claiming in her application for the Student visa that she worked as an accountant while other evidence indicated that she was a company director and an owner of Immi Solutions.
The Tribunal considers that basis for establishing the ground for cancellation to be problematic.
Firstly, the Tribunal is of the view that it is not inconsistent for the applicant to have claimed that she worked as an accountant if she also performed the duties of a company director.
The ASIC website (Small business company directors | ASIC) refers to the duties of company directors as, essentially, being responsible for overseeing the affairs of a company and complying with certain legal obligations. These are not inconsistent with being involved in the financial affairs of a company, as an accountant would be expected to do.
In her response to the NOICC the applicant explained the nature of her role, stating that she had minimal involvement in the day-to-day management of the company and that her role was more strategic. If true (and there is nothing to contradict the applicant’s claims), it would have been possible for the applicant to combine the two roles of being a company director and an accountant.
Secondly, and significantly, the applicant claimed to have been working as an accountant on a part-time basis. Employment on a part-time basis in one occupation does not preclude employment in a different occupation (such as a company director) at the same time. The applicant’s claim in the Student visa was not that she worked as an accountant on a full-time basis which may have precluded her engagement in any other occupation.
Thus, the Tribunal is of the view that it is possible that the applicant had performed both roles of an accountant and company director at the relevant time. The answer on the form may have been incomplete but not necessarily incorrect.
The NOICC has also raised the issue of the applicant failing to inform the Department that she was a company director and an owner. That is, the NOICC appears to refer to the applicant’s omission in relation to her employment, rather than the falsity of her answer.
The Tribunal has considered the reasoning in Salama v Minister for Immigration & Anor [2017] FCA 2 which suggests that where more than one answer on the form is capable of being correct, it is necessary to consider whether the answer provided was in fact incorrect. The Tribunal has not been provided with a copy of the applicant’s Student visa application which purportedly contains an incorrect answer. However, the Tribunal notes that the application for a Student visa form, at question 37 refers to an applicant’s employment status. It requires the applicant to provide details of employer, contact details and position held. The applicant’s reference to being an accountant at Immi Solutions was a truthful answer to these questions and, in the absence of a direction to list every position held (to the extent that being a company director is in fact a position), the Tribunal is of the view that the incompleteness of her answer cannot be equated to an incorrect answer. (The Tribunal notes that the NOICC does not refer to non-compliance in relation to the Skilled visa application.)
Significantly, there appears to be nothing on the application form that would have required the applicant to disclose her status as the owner of the company. In the circumstances where there was no requirement on the form to disclose that information, the applicant’s failure to disclose the information cannot be construed as an incorrect answer.
In the Tribunal’s view, none of the information referred to in the NOICC, and none of the evidence before the Tribunal, supports a positive finding that the applicant’s reference to being an ‘accountant’ on a part time basis in response to a question on the application form was incorrect.
The basis of the cancellation set out in the NOICC is that the applicant completed the application form in a way that incorrect answers were given or provided, specifically with respect to her employment as an accountant. The onus is not on the visa holder to establish that the visa should not be cancelled. In Zhao v MIMA [2000] FCA 1235 at [25] and [32] the Court stated:
The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.
While that case was concerned with cancellation under s 116, the Court’s comments would be equally applicable to s 109.
For the reasons set out above, the Tribunal cannot positively find that the applicant’s indication in in the visa application form that she worked as an accountant on a part-time basis was incorrect (even if incomplete). The Tribunal cannot be positively satisfied that the applicant completed the application form in a way that incorrect answers were given or provided.
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.
However, if the Tribunal were wrong in its assessment above, for the following reasons the Tribunal would exercise the discretion in favour of the applicant.
Should the visa be cancelled?
Cancellation in the context of s. 109 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. They are:
The correct information
If it were found that the applicant worked as a company director and not as an accountant (or as a director and an accountant) the correct information would be that the applicant had worked in a different occupation to the one claimed in her application form or that she had worked in multiple occupations. The correct information would also be that the applicant was the owner of the company, although as noted above, there does not seem to be a question on the application form requiring her to disclose that information.
The content of the genuine document (if any)
This is not relevant in the present case.
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 delegate states that by failing to inform the Department of her role as the company director and owner of Immi Solutions Pty Ltd, the Student visa delegate was not able to assess the correct circumstances of the visa holder. However, such a broad statement does not indicate what the relevance of the applicant’s employment would have been to the assessment of her eligibility for the Student visa. It may be that the nature of the applicant’s employment would have been relevant in determining whether the applicant is a genuine temporary entrant but that is not apparent from the information before the Tribunal and it is not clear whether identification of a different occupation (as a company director rather than accountant) would have affected the applicant’s eligibility for the Student visa. Importantly, no concerns have been raised with the applicant’s stated employment as an accountant, rather, the issue is her failure to identify her role as the director / owner of the business. If the applicant did work as an accountant, as claimed, and the fact that she was granted the Student visa on that basis, then the significance her failure to mention her role as company director is less clear.
The applicant’s employment a company director of Immi Solutions seems to have had no bearing on the grant of the Skilled visa.
The circumstances in which the non-compliance occurred
The applicant denies there was non-compliance. As noted above, the issue here seems to be omission rather than incorrect information and the applicant claims in her response to the NOICC that despite her role as a company director, she had minimal involvement in the day to day running of the business as the company director and that she did perform the role of an accountant.
The Tribunal cannot determine whether the applicant’s failure to mention her role as a director was deliberate and intentional misrepresentation or an omission.
The present circumstances of the visa holder
The applicant outlined her present circumstances in her response to the NOICC. The applicant’s partner and two children reside in Australia. Her youngest child is an Australian citizen.
The applicant provided evidence that she and her partner have been involved in a number of businesses. They have also purchased multiple properties in Australia. there is evidence of their involvement in various community activities.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate states that the applicant continued to misrepresent the nature of her relationship with Immi Solutions when applying for the Skilled visa. However, for the reasons set out above, the Tribunal is of the view that an omission does not equate to the provision of an incorrect \answer on the form in the circumstances where the form does not expressly seek that information.
The time that has elapsed since the non-compliance
The application for the Student visa was made in 2019 and about five and a half years passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant provided with her response to the NOICC evidence of extensive involvement in, and support for, community functions and activities. The Tribunal accepts that the applicant has made a meaningful contribution to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to 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 visas held by the applicant ‘s spouse and older child would be subject to consequential cancellation.
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.
The applicant has two minor children. Her eldest child’s visa would be subject to consequential cancellation. Her younger child is an Australian citizen who was born in Australia in 2023.
In her submission to the delegate the applicant refers to the best interests of her children, the adverse impact if the children were to leave Australia, including disruption to their education and loss of community ties. The applicant refers to the children’s settlement in Australia. The Tribunal accepts that it may be in the best interests of the children to remain in a stable and supportive environment they are used to in Australia.
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, and the applicant does not claim, that the cancellation of the visa would lead to removal in breach of non-refoulement obligations.
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 applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and could be detained and removed from Australia. The applicant would have limited options to make other visa applications onshore due to the operation of s 48 and would be subject to an exclusion period in PIC 4013 in relation to some future visa applications. The applicant will also lose the entitlements she has acquired as a permanent resident of Australia.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

The applicant has provided to the delegate extensive evidence of the family’s settlement in regional Australia, business involvement, property ownership and involvement in several community activities. The applicant provided a number of letters of support and character references. The Tribunal accepts that, given the level of the family’s integration in the community, their departure from Australia could cause significant hardship to the applicant and her family.
The Tribunal has considered the applicant’s circumstances. The Tribunal has determined that there are no grounds for cancelling the visa but if it were to find that the applicant did not comply with s. 101, the Tribunal has formed the view that there are strong reasons to set aside the cancellation.
Firstly, the Tribunal would give significant weight to the best interest of the two children, noting in particular as one of the children is an Australian citizen. The Tribunal is of the view that it is in the best interests of these children to remain in an environment they are used to and to be supported by their parents.
Secondly, the Tribunal acknowledges the significant contribution that the applicant and her partner have made to their local community. This is evidenced by multiple documents that have been submitted in response to the NOICC.
Thirdly, the Tribunal considers that considerable hardship may be caused to the applicant and her family by the cancellation, if it were to lead to the family having to depart Australia, given the significant level of financial, community and other ties that they have established in Australia.
Fourthly, and also significantly, the Tribunal places weight on the fact that the significance of the allegedly incorrect answer to the grant of the visa has not been established. That is, it is not apparent that the decision to grant the Student visa was based on an incorrect answer and it is not obvious that the incorrect answer had any bearing on the applicant’s eligibility for the Student visa.
In the circumstances of this case, the Tribunal is of the view that the factors that weigh against the cancellation outweigh any factor that may weigh in favour of the cancellation. Thus, if the breach was established, the Tribunal would exercise its discretion not to cancel the visa held by the applicant.
Conclusion
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.
Further, and in the alternative, if the ground for cancellation was established, the Tribunal would exercise its discretion not to cancel the visa.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Date(s) of hearing n/a
Representative for the Applicant: Mr Duy Thanh San