Kanwer (Migration) - [2025] ARTA 2250

KANWER (MIGRATION) [2025] ARTA 2250 (7 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Nazia Kanwer
Mr Rao Asif Jamil
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2505341
Tribunal:General Member P Maishman
Place:Perth
Date:  7 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 07 August 2025 at 4:21pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 489 - Skilled – Regional (Provisional) – incorrect information the visa applications – employment history – bogus documents – employment details corrected by the employer – discretionary power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 97-105, 107-109, 140
Migration Regulations 1994
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the visa holder provided incorrect information in relation to her employment at Pakistan Lions Youth Council (PLYC) in visa applications lodged on 14 October 2019 and 28 May 2024, contrary to the requirement of s 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 visa was 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 applicant.
The applicants appeared before the Tribunal on 19 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Qaiser Javaid, who is the Executive Director of PLYC.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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.
On 13 June 2025 the Tribunal invited the applicant to comment on the validity of a non-disclosure certificate attached to certain documents on the Departments file pursuant to s 375A because ‘the documents contain Departmental investigative methods that are not publicly available information and disclosure to the review applicant or any other person would prejudice the Department’s ability to undertake those methods and therefore also its ability to administer the Migration Act 1958.
The applicant indicated she sought the release of the documents so she could comment on the verification steps taken by the Department.
The Tribunal finds the certificate is valid. The Tribunal explained to the applicant the procedural requirement to put adverse information, which might be contained in the protected documents, to her for comment before taking that information into account in making its decision. The Tribunal declined to release the document to the applicant.
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(b) of the Act because she provided incorrect answers about her employment history on her visa applications; and s 103 of the Act because the attestation seal and signature on copies of her education certificates, National Identity Card documents and PLYC employment documents were fraudulent generations.
The Tribunal first considered the identified non-compliance with s 101(b) of the Act in respect to answers on her visa applications about her employment.
The applicant recorded on her visa application on 14 October 2019 to have been employed as a Diversional Therapist with PLYC since 1 October 2010. On her visa application dated 28 May 2024 the applicant declared her employment with PLYC as a Diversional Therapist from 6 October 2010 to 20 January 2022. The applicant’s claimed employment was supported by a letter dated 2 April 2019 co-signed by Faisal Basheer, PLYC HR Manager and Dr Qaiser Javaid, PLYC Executive Director. The applicant also provided a number of salary records and payment slips and other correspondence of engagement with PLYC dated 15 September 2010, 1 October 2010 and 1 January 2012.
The Department initiated verification checks with Mr Qaiser Javid via telephone interview on 26 August 2024. The Department have recorded Mr Javed identified the PLYC engaged about 200 employees, that he did not know the applicant and there was no designated position of diversional therapist.
On 19 September 2024 the applicant responded to the Departments Notice of Intention to Consider Cancellation (NOICC) dated 19 September 2024. The applicant denied the suggestion she was not employed by PLYC and provided an affidavit from her driver dated 14 September 2024 confirming her employment as a diversional therapist; an affidavit from Qaiser Javed Executive Director at PLYC dated 14 September 2024 confirming her employment as a diversional therapist from 1 October 2024; and an affidavit from Muhammad Arif, a PLYC Program Manager, dated 14 September 2024 confirming her employment as a diversional therapist from 1 October 2010 to 20 January 2022.
The delegate noted the inconsistent affidavit of Dr Qaiser Javed and the Department contacted the PLYC again on its landline number on 24 October 2024. The delegate recorded the phone was answered by Mr Sarwar who identified himself as an IT officer and referred the call to HR Officer Mr Abid. Mr Abid confirmed the applicant was employed by PLYC as a diversional therapist from 1 October 2010 to 20 January 2022.
Mr Qaiser Javed gave evidence to the Tribunal by video. The tribunal asked him to explain the inconsistency from his conversation with the Department’s officer on 26 August 2024 to his affidavit on 14 September 2024. Mr Javed told the Tribunal his son was killed in a motor vehicle accident in December 2023. He received a phone call unexpectedly from in August 2024 at which time he was at home, sedated and still grieving the loss of his son. He states his memory and comprehension was significantly affected by the medication he was taking and was resting at home. He was unclear of what questions were asked of him or what answers he gave. Mr Javed said it took him approximately 6-8 months to become near normal again and about 18 months to get back to work. Mr Javed said the types of enquiries by the Department are usually conducted by email and the PLYC can provide correct answers in writing by reference to their HR files. Mr Javed apologised for the problems he caused the applicant and the Department. Dr Javed confirmed to the Tribunal the applicant was employed by PLYC since October 2010 to January 2022. He recognised her as a skilled and dedicated worker with PLYC in various projects including drug abuse and HIV programs.
The Tribunal is satisfied Mr Javed is a credible witness and accepts his oral evidence on that basis.
The Tribunal attributes more weight to the applicants oral evidence, contemporaneous documents confirming her employment, records of the Department’s discussion with Mr Abid HR Manager, subsequent affidavits of PLYC staff and the Executive Director Mr Javed to the evidence obtained during a discussion with Dr Javed, reportedly while he was heavily medicated on 26 August 2024.
The preponderance of evidence supports the applicant was employed as she disclosed on her visa applications.
The Tribunal finds the applicant did not provide incorrect answers on her visa application.
Accordingly the Tribunal is satisfied there was no non-compliance with s 1010 of the Act as described by the delegate in its s 107 notice.
In respect of the identified non-compliance with s 103 of the Act, the delegate subsequently found there was insufficient evidence that the documents to which the alleged fraudulent attestation stamps and signatures were attached were bogus documents. The delegate established the stamps and signatures were in fact authentic attestations by a member of the Bar Council of Pakistan.
There is no evidence before the Tribunal that the indicated documents were not issued in respect of the applicant; that the documents are counterfeit or altered by an unauthorised person; or that the documents have been obtained because of a false or misleading statement. The Tribunal is satisfied the applicant has not provided the Minister or any representative a bogus document, as defined in s 5(1) of the Act.
The Tribunal is satisfied there is no non-compliance with s 103 of the Act.
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.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.
The Tribunal has no jurisdiction with respect to the other applicant.
Dates of hearing(s):  19 June 2025
Representative for the Applicant:           Mr Gurvinderjeet Singh Parmar (MARN: 1808842)
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 ART, 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 [written]# notice:
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
[(1C)The notice under subsection (1) must be given in the prescribed way. ]#
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
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