Kaur (Migration)

[2021] AATA 2157

Kaur (Migration) [2021] AATA 2157 (21 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Master Gurnoor Singh Sidhu

CASE NUMBER:  2018058

HOME AFFAIRS REFERENCE(S):          BCC2018/4220893

MEMBER:Jason Pennell

DATE:21 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 21 May 2021 at 11.34am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect answers in the visa application – bogus English test results – applicant’s attempts no clarify results with testing agency – the correct test results would have met the criteria – potential adverse effect on sponsor’s business and employment of other staff – cancellation of son’s Australian Citizenship – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Minister of Immigration and Citizenship v Brar (2012) 201 FCR 240
Saleem v Migration Review Tribunal [2004] FCA 234           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made on 16 December 2020 by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa (‘the 457 visa’) under s.109(1) of the Migration Act 1958 (the Act).

2.The delegate cancelled the 457 visa on the basis that the applicant failed to comply with sections 101(b) and 103 of the Act by providing a bogus IELTS English test report and incorrect answers about her English test results on her 457 visa application form. 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.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is with respect to the first named applicant, Mrs Ranjit Kaur, (the applicant). The other visas for the applicant’s husband (Mr Sukhdeep Singh Sidhu) and the applicant’s underage son (Master Gurnoor Singh Sidhu) 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.

4.The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. As such, the hearing was held via conferencing facilities using the Microsoft Teams program. During the hearing the applicant confirmed that she could hear the Tribunal member and was able respond to all matters put to her by the Tribunal.

5.The Tribunal also received oral evidence from the applicant’s current sponsoring employer, Mr Harpreet Singh Mangat. The applicant’s son, Master Gurnoor Singh Sidhu also appeared before the Tribunal. However, the Tribunal determined that it was not necessary for him to make submissions or provide any evidence. The applicant was represented at the hearing by her registered migration agent.

6.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

7.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 to the Department of Home Affairs (the Department) and to notify the Department of any incorrect information of which they become aware of and of any relevant changes in circumstances.

8.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.

Did the notice comply with the requirements in s.107? 

9.In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107.  Pursuant to section 107(1)(a) of the Act, the notice must provide particulars of the non-compliance as alleged by the Department. That is, the notice must set out the specific details of the applicant’s non-compliance and not simply state, for example, that the applicant had failed to comply with section 101 of the Act.[1]  A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. As such, it must contain the particulars of the possible non-compliance and then the decision maker under section 108 of the Act must then decide if there has been non-compliance in the way described in the notice.[2]

[1] Saleem v Migration Review Tribunal [2004] FCA 234 @ [43] per Allsop J

[2] Minister of Immigration and Citizenship v Brar (2012) 201 FCR 240 per North, Greenwood and Besanko JJ @ [56]-[57]

1. In a Notice of Intention to Consider Cancellation dated 3 June 2020 the delegate delated the particulars of non-compliance to the applicant under section 101 of the Act.

11.Section 101 of the Act states:

101.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.

1. Section 98 of the Act provides that ‘a non-citizen who does not fill in his or her application 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.’[3]      

   [3]    Section 98 of the Act

2. Section 99 of the Act provides that ‘any information that a non-citizen gives or provides, cause 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-citizens application for a visa is taken for the purposes of section 100, paragraphs 1010(b) and 102(b) and sections 104 and 105 to be answer to questions in the non-citizens application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.’[4]

   [4]    Section 99 of the Act

3. Section 100 of the Act states that ‘an answer to a question is incorrect even thought the person who gave or provided the answer or caused the answer to be given or provides did not know it was incorrect.’[5]

   [5]    Section 100 of the Act

4. Section 103 of the Act provides that a person must not give, present, produce or provide a bogus document to an officer, authorised system, Minister, the Immigration Assessment Authority, or the Tribunal. Section 5.(1) of the Act defines the meaning of a bogus document under the Act and it includes a document that is a counterfeit or has been altered by a person who does not have authority to do so.[6] 

   [6]    Section 5(1) of the Act

5. On or about 30 December 2016 the applicant applied for the 457 visa to work as a chef for her nominated sponsor JP Restaurants and Catering Pty Ltd (‘the applicant’s sponsor). The applicant completed the online 457 visa application form confirming that she had taken an IELTS English test on 18 April 2015. In support of her application the applicant provided an IELTS Test report Form dated 18 April 2015 which showed her results as follows (‘non-genuine IELTS result’):

   ·Listening   6.5

   ·Reading   6

   ·Writing   6

   ·Speaking   6

   ·Test score/ Overall band score            6         

6. It was determined that the applicant met the relevant criteria and she was granted a 457 visa on 10 April 2018, which is valid until 10 April 2022.

7. The Notice of Intention to Consider Cancellation (NOICC) advised the applicant that since the grant of her 457 visa integrity checks undertaken by the Department indicated that the ILTES test provided by the applicant had been altered and therefore not genuine. The Department was advised by the Investigations Co-ordinator at IDP Education Ltd that the IELTS test results provided by the applicant do not match the IELTS test results on their records. The Department obtained a copy of the applicant’s test results from IELTS which showed that she had achieved the following results (‘genuine IELTS result’):

   ·Listening   5

   ·Reading   4.5

   ·Writing   5.5

   ·Speaking   5

   ·Test score/ Overall band score            5            

8. As a result, the delegate concluded that the answers that the applicant provided in relation to her English test result was incorrect and in breach of section 101(b) of the Act and that she had not complied with section 103 of the Act by reason of having provided a bogus document.

9. 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?

1. 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 section 101(b) of the Act and section 103 of the Act in the information provided by the applicant in her application for the 457 visa was not correct and that the information contained in the IELTS Test report Form dated 18 April 2015 provided by the applicant did not contain the applicant’s correct English test scores.

2. For these reasons, the Tribunal finds that there was non-compliance with section 101(b) of the Act and section 103 of the Act by the applicant in the way described in the s.107 notice.

Background

1. The applicant is a 35-year-old female from India who first arrived in Australia on 17 May 2009 on a student (TU 572) visa. She was subsequently granted various student visas.

2. Since arrival, the applicant has departed Australia twice and has remained onshore since 14 May 2015.

3. Department records indicate the applicant has been on a Bridging Visa E since 22 December 2020 with attached visa conditions 8207 (no study), 8401 (report as directed), 8506 (notify new address) and 8510 (show valid passport).  

4. On 30 December 2016, the applicant lodged her 457 visa application to the Department and was granted the visa for a period of 4 years from 10 April 2018 to 10 April 2022 based on the approved nomination made by the applicant’s sponsor.

5. Integrity checks undertaken by the Department indicated that the information in relation to the IELTS English test score, provided by the applicant in her application for the 457 visa and the IELTS test report dated 18 April 2015 provided by the applicant to the Department (as part of her application), was incorrect.

6. Accordingly, on 3 June 2020 the delegate sent the applicant a NOICC[7] by registered mail and email advising that they consider the IELTS test report to be a bogus document within the meaning of s.5(1)(b) of the Act. Thus, the applicant’s 457 visa is liable for cancellation for possible non-compliance with sections 101(b) and 103 under s.109 of the Act.

   [7] NOICC dated 3 June 2020, Department eFile BCC2018/4220893, Doc ID No. 7971314

7. The applicant provided the following material in response to the Department’s NOICC[8]:

   [8] Department eFile BCC2018/4220893

   ·Representative’s legal submissions dated 29 June 2020

   ·Applicant’s statement dated 27 June 2020

   ·Support letter from applicant’s employer dated 28 June 2020

   ·Support letter from applicant’s husband dated 29 June 2020

   ·3 x Statutory Declarations from applicant’s family friends dated 29 June 2020 attaching their respective passports and VEVO Visa Detail Checks

   ·Support letter from applicant’s rental Property Manager dated 24 June 2020

   ·Applicant’s underage son’s (child) New South Wales Birth Certificate

   ·Child’s Australian passport valid from 18 June 2020 to 18 June 2025

   ·Child’s Australian Citizenship certificate dated 3 June 2020

   ·Child’s primary school reports for 2017, 2018, 2019 and 2020

   ·Child’s various school award certificates dated between 2016 to 2019

   ·Applicant’s Indian Marriage Certificate dated 19 December 2008

   ·Applicant’s Nationally Co-ordinated Criminal History Check Certificate dated 24 February 2020

   ·Applicant’s PTE English test results dated 21 December 2018 showing an overall score of 59

   ·Applicant’s ATO Notices of Assessment for years ending 30 June 2018 and 30 June 2019   

8. The applicant’s 457 visa was cancelled by the delegate on 16 December 2020 on the basis that she had not complied with sections 101(b) and 103 of the Act by proving incorrect information in her visa application and a bogus document in relation to her English test scores.

Submissions to the Tribunal

1. The applicant provided the following material in support of their merits review application:

   ·copy of delegate’s notification letter and decision record dated 16 December 2020[9]

   ·Applicants submissions dated 6 May 2021.[10]

   ·Applicants submissions dated 13 May 2021.[11]

   [9]    Primary notification letter and delegate’s decision record dated 16 December 2020, Tribunal case file 2018058, Doc ID Nos. 7951345 & 7951344 

   [10]  Letter form Telco immigration dated 6 May 2021, Tribunal case file 2018058, DOC ID No. 8397300

   [11]  Letter form Telco immigration dated 13 May 2021

Should the visa be cancelled?

1. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

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.[12]

   [12] section109(1)(b) and (c) of the Act.

3. The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

·        the correct information

·        the content of the genuine document (if any)

·        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 circumstances in which the non-compliance occurred

·        the present circumstances of the visa holder

·        the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

·        any other instances of non-compliance by the visa holder known to the Minister

·        the time that has elapsed since the non-compliance

·        any breaches of the law since the non-compliance and the seriousness of those breaches

·        any contribution made by the holder to the community.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[13] 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.

Applicants response.

[13] MIAC v Khadgi (2010) 190 FCR 248

1. The applicant’s evidence to the Tribunal was consistent with the written submission provided to the Department in response to the NOICC[14] and the to the Tribunal. Mr Harpreet Singh Mangat, the applicant’s employer, also provided a written statement to the Department[15] and gave evidence consistent with this statement to the Tribunal.

   [14] Applicants submissions dated 27 June 2020

   [15] Statement by Mr Harpreet Singh Mangat dated 28 June 2020

2. While the applicant is aware of section 100 of the Act and understands that she is responsible for all the information provided to the Department, her evidence was that she was not aware that she had submitted false information and document to the Department as part of her application. The applicant’s evidence was that she sat the IELTS English test at the Brar English Coaching Centre in Moya City, Punjab, India (‘BECC’)  on or about 18 April 2015.[16] The applicant claims that after the test she contacted the centre directly by telephone and she was informed of her results over the phone. She claims that when she returned to Australia, she received the IELTS document in the mail that confirmed her overall score is 6.[17] She subsequently provided the document to the Department. The applicant maintains that she has always believed that the IELTS results she claims to have received from the centre were original and correct. Her evidence was that if she knew the score was wrong, she would not have submitted application with the wrong IELTS score.  

   [16] Applicants submissions dated 27 June 2020

   [17] ibid

3. The applicant claims that when she was informed that her English test score was wrong, she tried to call the coaching centres to ask what happened to her IELTS result.[18]  However, she claims the number was not available. As a result, she claims that she contacted her brother in India and asked him to go to the BECC in Moya City to see what had happened. The applicant’s evidence was that when her brother went on the premises, it was no longer operating. She claims that her brother asked the operators of the new shop located at the premises about the centre and he was informed that the BECC had closed in 2016. The applicant did not provide any evidence from her brother or from any person to whom her brother is said to have spoken. In addition, the applicant claims that others had been affected by the BECC providing them with wrong information. The applicant did not provide any evidence to support this claim.

   [18] ibid

4. During the course of the hearing the Tribunal made some enquires of the applicant about the existence of the BECC in Moya City. As a result, the Tribunal allowed the applicant time after the hearing to make any necessary enquires about the location and existence of the BECC on Moya City. By a letter dated 13 May 2021, the applicant informed the Tribunal that several attempts had been made to contact the BECC, all of which had failed. The applicant informs the Tribunal that in response to her email enquiry IELTS she was informed that their Australian contact cannot assist as they do not have the resources to gain access to records outside the Australian region. All attempts to contact BECC in Moga City failed. In addition, the applicant’s evidence is that the website referred to by the Tribunal was not located in Moga but in Ran Singh Wala. The Tribunal accepts that the location of the centre is unclear from the website. As such, it appears despite the applicant’s best attempts no evidence can be obtained from BECC as to the reason why the wrong information and documentation was provided to the applicant as claimed.

1. While the Tribunal has some reservations about the applicant’s claim that her brother attended the premises, it does accept based on the recent search that the BECC in Moga City is no longer in operation.

2. Except to say that the BECC had provided the information to her, the applicant was not able to tell the Tribunal why the information she was provided was wrong or how she was provided a non-genuine IELTS report. Nevertheless, the Tribunal accepts the applicant’s submission that she takes full responsibility for her actions despite being of the genuine belief that she had provided the correct information to the Department. In that sense the applicant is fully aware of the serious ramifications for having provide the wrong information.

The correct information

1. It is accepted by the applicant that the correct information of her English test is in accordance with the genuine IELTS results recorded above. The Tribunal gives this some weight in favour of cancelling the applicant’s visa.  

The content of the genuine document

1. The applicant accepts that the correct information is that she achieved an overall band score of ‘5’ rather than ‘6’, as recorded on the non-genuine IELTS report. However, the Tribunal has considered the applicant’s evidence that she was not aware that the information she provided was incorrect. While the Tribunal has some concerns about her evidence that she was provided the wrong information on the telephone and was sent the non-genuine IELTS report in the mail, in the absence of any evidence to the contrary the Tribunal accepts her evidence that she relied on the wrong information and a bogus document provided to her as claimed. 

2. In addition, the Tribunal notes that even if the correct score of ‘5’ had been recorded, the applicant’s IELTS test score would still have met the minimum marks required at the time of the application on 30 December 2016 for the applicant to have been granted the 457 visa. The Tests , Scores period, Level of  Salary and Exemptions to the English language requirements for subclass 457 (Temporary work (Skilled)) visa 2015, known as IMMI 15/028, specifies that for the purpose of subparagraph 457.223(4)(eb)(v) a minimum band score of ‘5’ is required. While the Tribunal acknowledges that the primary issue is the possible false information and bogus document being provided to the Department, it does give some weight in the applicant’s favour that if the correct test results had been provided to the department at the time of making her application  the applicant would have still meet the criteria for the Department to be able to accept her visa application.

3. The Tribunal accepts that if she had been informed that the information was wrong at the time of her application, she would have sat another test to show that she met the required English standard. The applicant claims that upon being informed that the information was incorrect in 2018, she sat another English test. The PTE Academic score report provided by the applicant shows that her overall score was 59 which is greater than the minimum required score of 36 as required by legislative instruments IMM15/28 and IMM18/032[19].

Whether decision to grant 457 visa based wholly or partly on incorrect information or a bogus document

[19] IMM18/032 is currently in force in relation to the subclass 482 visa.

1. The applicant and her family were granted a 457 visa on the basis that they meet all the criteria relevant to the grant of the visa. This included having an approved nominated sponsor. The primary criteria of the 457 visa are closely related to the inherent nature of it being a work related visa. As such, it was necessary for the applicant to demonstrate that she had the necessary skill and qualifications to be able to perform the work as determined by her nominated sponsor. Therefore, it appears that the Department’s decision to grant the applicant’s 457 visa was based on her ability to perform the role for which she was nominated. That is, her nomination was required to meet the relevant criteria for nomination approval as well as the delegate’s recognition that the applicant has the skills and knowledge to be able to perform the role. In this case as a chef in an Indian restaurant.

2. Therefore, while the Tribunal accepts that achieving the minimum English score, as prescribed by the relevant instrument in clause 457.223(4)(eb), was necessary, it was not the only basis upon which the applicant was granted the 457 visa. As such, the decision was based partly based on her English test score. In circumstances where the genuine report indicates that she would have reached the minimum English standard, all other things being equal, she more than likely would have been granted the visa. The Tribunal places some weight in the applicant’s favour in relation to this consideration.

Circumstances in which non-compliance occurred

1. The Tribunal has detailed the circumstances of the non-compliance above. It has accepted that the applicant relied on the information and documentation provided to her by the BECC and that she was not aware that the information was incorrect, or the document was bogus. As such, notwithstanding section 100 of the Act, she was not aware that the information in relation to the English test score was incorrect.  The Tribunal places some weight on this consideration in the applicant’s favour.

Applicant’s present circumstances

1. The applicant has complied with all the conditions of her visa, including remaining being employed as a chef by her nominated sponsor. In addition, the applicant does not have a criminal record. 

2. The applicant’s employer, Mr Mangat, gave evidence at the hearing to the effect that he relies on the applicant as the chef of his restaurant to be able to continue to conduct his business. His evidence was to the effect that the business is located on the Central Coast of NSW. He claims there is a severe shortage of skilled chefs in the area and states that it is difficult to employ a chef generally, let alone a chef for an Indian restaurant. Mr Mangat stated that as he is not a chef and he relies heavily on the applicant to be able to run the business efficiently. He claimed that if her visa was cancelled it would severely affect his busines to the point he would have to close it down.

3. While the Tribunal may not necessarily accept the drastic consequences for his business as described by Mr Mangat, it does accept that it will adversely affect his business and the possible employment of the other staff (approximately five others)  employed in the business. The Tribunal accept Mr Mangat’s evidence that he has an honest working relationship with the applicant and that he riles on her for her to conduct his business. Accordingly, the Tribunal places some weight on this consideration in the applicant’s favour.   

4. The applicant’s son, Master Gurnoor Singh Sidhu (Gurnoor), was born in Australia on 21 March 2010. Its claimed that he was recognised under section 12(1)(b) of the Citizenship Act as an Australian citizen and that he obtained Australian citizenship on 3 June 2020 upon which he was issued with an Australian passport and Australian Certificate. On 22 July 2020, the Department issued a NOICC[20] Gurnoor’s Australian Citizenship, deeming it may have been issued in error as his movement record indicate that he may not meet the definition of ordinary resident in Australia through the 10 year period since his birth. This was opposed. On 2 October 2020, the Department cancelled Gurnoor’s Australian Citizenship. The applicant maintains that by operation of the Act, her son is entitled to Australian Citizenship. She claims that a cancellation of her visa will force her to remove him for the country and therefore prejudicing his application. The Tribunal places some weight on this factor in the applicant’s favour.

Applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act

[20] Notice of Intention to Consider Cancellation dated 3 June 2020. DOC ID 7971314)

1. The applicant has been cooperative with the Department and the Tribunal. There is no suggestion that she has not complied with her obligations under the Act. The Tribunal gives this some consideration in the applicant’s favour.

Any other instances of non-compliance by the applicant known to the Minister

1. There is no evidence to indicate any other instances of non-compliance by the applicant. The Tribunal gives this some weight in the applicant’s favour.

The time that has elapsed since non-compliance

1. The applicant completed he IELTS English test in April 2015 and lodged her visa application on 30 December 2016. She claims to only have become aware of the non-compliance as a result of having been provided the incorrect results in July 2018. As such it has been some time since the non-compliance occurred. The applicant has been residing in Australia with her family since 2008. First as a student and then working for her nominated sponsor. Save for the non-compliance as claimed by the Department, the applicant has otherwise complied with all the conditions of her visa since arriving in Australia. In addition, she has developed ties to the community having been in the same job for several years and having been responsible for the operation and running of the restaurant in which she works. The Tribunal places some weight in relation to this consideration in the applicant’s favour.

Any breaches of law since non-compliance and seriousness of these breaches

1. There is no evidence that the applicant has breached the law. The Tribunal places little weight on this consideration in the applicant’s favour.

Applicant’s contribution to the community

1. The applicant’s evidence was that during the COVID-19 pandemic and lockdown, she has worked additional hours for her employer to provide meals for people in need. The applicant’s sponsor’s evidence to the Tribunal was that she had worked preparing meals for the community during the pandemic to assist her local community. He claims that the applicant is an honest, professional, and diligent worker who is well liked within her community.  The Tribunal gives this consideration little weight in the applicant’s favour.

Consequential cancellations under s.140

1. The applicant husband, Sukhdeep Singh Sidhu and their son Gurnor were both granted secondary visas on the basis of being members of the family unit of the primary visa holder, being the applicant. As a result of the cancellation of the applicant’s visa, her husband’s and her son’s visas would also be cancelled.

2. The Tribunal accepts that the cancellation of the visas would mean that both her husband and her son would suffer some hardship. Together with the applicant they have developed ties to the community. The applicant’s husband is working as a truck driver and her son is attended school in the local area. The Tribunal accepts that both the applicant’s husband and her son will suffer hardship because of having their visa cancelled as a consequence of the cancellation of the applicant’s visa. The Tribunal places some weight on the consideration in the applicant’s favour.

Any breach of international obligations Australia may have because of the applicant’s visa being cancelled.

1. The Tribunal has considered if the cancellation of the applicant’s visa would breach the Convention of Rights of the Child (CRC) which states that the best interest of the child must be the primary consideration in making decisions that affect them and that a decision maker considering cancelling a visa must turn their mind to the consequences of cancellation of the visa, especially if the child will be separated for the family unit.  

2. The Tribunal accepts that upon cancellation of the applicant’s visa and her return to India, her husband and child would return with her.  As referred to above the it is claimed by the applicant that her son is entitled to Australian citizen. By cancelling the applicant’s visa its likely that her son will be denied the opportunity of advancing his claim with the Department and elsewhere for Australian citizenship. The Tribunal places great weight on this consideration in the applicant favour.   

Mandatory legal consequences.

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if she does not voluntarily depart Australia.

2. In addition, the applicant will be subject to s.48 of the Act which means that she will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

3. The Tribunal gives some weight to this consideration in the applicant’s favour.

Other relevant considerations

1. There are no other relevant matters that require consideration.

2. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

3. The applicant should know that the Tribunal takes the breach of section 101 of the Act very seriously and as such has only marginally made this decision in the applicant’s favour. The fact that the Department’s decision was not solely based on the wrong information provided and that had the correct information been provided the applicant would have qualified for the visa in any event are factors that the Tribunal has given considerable weight in making the decision to set aside the decision under review and substitute a decision not to cancel the applicant’s visa.

DECISION

68.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

69.The Tribunal has no jurisdiction with respect to the other applicants.

Jason Pennell

Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

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).

3. 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.

4. 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.

5. 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.

6. 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.

7. 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).

8. 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.

9. Decision 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.

1. Cancellation 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.