Kaur (Migration)

Kaur (Migration) [2020] AATA 2287 (23 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sandeep Kaur
Mr Amrik Singh
Mr Jaishan Singh Khehra
Miss Roozal Preet Kaur Khehra
CASE NUMBER:  1825669
DIBP REFERENCE(S):  BCC2018/4047511
MEMBER:Michelle East
DATE:23 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 23 March 2020 at 12:26pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration (Direct entry) visa – Subclass 187 Regional Sponsored Migration Scheme – incorrect information on visa application – position of Cook – sponsor reportedly ceased trading before visa and nomination applications – business moved premises – applicant continued employment with sponsor – the incorrect address only provided in nomination application – discretionary power to cancel visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107,109, 140
Migration Regulations 1994
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 first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder provided incorrect information on her application for a Regional Sponsored Migration (Direct entry) (subclass 187) visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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 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.
After reviewing the documentation provided to it, including the Departmental file, the Tribunal was able to make a decision on the papers without the need for a hearing.
The applicants were represented in relation to the review by their 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 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 section 101 – visa applications to be correct – in the following respects: Section 101(b), ‘a non-citizen must fill in or complete his or her information form in such a way that no incorrect answers are given’
The section 107 notice is dated 13 July 2018 and relevantly set out:
I consider that you did not comply with section 101(b) of the Migration Act when you lodged the following visa application:
-Application for a Regional Sponsored Nomination Scheme (Direct Entry)(subclass 187) visa, lodged in Australia on 5 May 2016 via the online lodgement facility.
On the electronic application form for the visa, you provided the following information:
-On page one, ‘Give details of the related nomination’, you answered ‘Nomination TRN EGO9IDT9T7’
The notice continued with details of incorrect information provided in the Nomination application TRN EGO9IDT9T7 lodged by way of an electronic application form by the applicant’s sponsor, Foodshala Pty Ltd, trading as Anika Sweets and Restaurant.
These were as follows:
On page one of the electronic application form for question ‘Legal registered name’ the visa holder’s sponsor answered ‘Foodshala Pty Ltd’ and for question ‘Trading name’ answered ‘Anika Sweets and Restaurant’
On page one of the electronic application form for question ‘Business registration type’ and ‘Business registration ID’ the sponsor answered ‘Australian business number (ABN) and 56162117893’ respectively.
On page one of the electronic application form, in response to ‘Work location postcode’ the sponsor answered ‘6108’.
On page two of the application form in response to the ‘Head office address’ the sponsor provided:
Country: Australia
Address: Shop 33, Thornlie Square Shopping Centre, Thornlie Avenue and Spencer Road
Suburb: Thornlie
State/Territory: Western Australia
Postcode: 6108
On page four of the application form, the sponsor provided the same address as the head office address as the address where the applicant would be employed
On page six of the application form the sponsor provided the applicant’s name, sex and date of birth as the ‘Nominated person details’
On page eight of the application form the sponsor answered ‘yes’ to the declaration ‘the applicants declare that they will provide full-time employment for the visa applicant for at least two years’.
The Department was advised by the City of Gosnells that the applicant’s sponsor, Foodshala Pty Ltd ceased operating from Shop 33, Thornlie Shopping Centre, Thornlie from at least 24 March 2015. This was prior to the submission of the visa application on 5 May 2016 and also prior to the nomination application on 1 October 2015.
The Department stated that the nomination information regarding her sponsorship in the position of Cook at Shop 33, Thornlie Shopping Centre, Thornlie did not genuinely exist at the time of the visa application or nomination lodgement.
The applicant was invited to respond and address any matters she thought were relevant within 14 calendar days of the Section 107 Notice.
The applicant responded with a Statutory Declaration of herself dated 27 July 2018, an Alinta energy bill dated 23 May 2016 addressed to Foodshala at 1514 Albany Hwy, Cannington, Express pest control certificate dated 31 March 2016, for Anika Sweets & Restaurant/Woodies Wood Fire Pizzeria at 1541 Albany Highway, Beckenham, Kleenheat gas bill for Annika Sweets and Restaurant at 1514 Albany Highway Beckenham dated 5 July 2016, Telstra bill for Foodshala Pty Ltd at 1514 Albany Highway Beckenham for May 2016 and a photo of what purports to be the new business ‘Indian Restaurant Anika Sweet and Restaurant’.
In her statutory declaration, the applicant stated she went to a staff meeting on February 2015 where she and the other staff were told that the employer/business owner was moving her business from Thornlie to Albany Highway Beckenham. She said Anika Sweet and Restaurant was operating successfully on Albany Highway.
She also said ‘Furthermore, I am living in Perth from 10 years. I am living here with my family. I have two children, they are studying in local school here. In addition, I am working as a cook in Taj Restaurant (Pinjarra Resort) in Pinjarra, it is in regional area. My new employer offered me long term job which I have accepted’.
The delegate considered the response provided and noted that the visa holder agreed there was non-compliance. In her statutory declaration she conceded that the business owner told her she was shutting the operation at Thornlie and moving the business. Therefore the applicant was aware that Foodshala Pty Ltd had ceased trading from Shop 33, Thornlie Shopping Centre, Thornlie, 6108 from at least 24 March 2015.
On 30 August 2018, the delegate decided to cancel the visa on the basis that she had provided incorrect information in her visa application.
Tribunal review application
The applicant lodged her application for review on 3 September 2018 together with the delegate’s decision record and notification letter dated 30 August 2018.
The applicant’s representative subsequently provided a submission to the Tribunal dated 28 November 2019 together with the following attachments:
-Financial statements for Foodshala Pty Ltd for 2014, 2016 and 2017
-PAYG summaries for the applicant for financial years from July 2014 until June 2017 with Foodshala Pty Ltd as the employer
-PAYG summary from Pinjarra Restaurant Pty Ltd for 1 May 2018 – 30 June 2018
-Historical details for Foodshala Pty Ltd’s ABN
-Bank statements of the applicant reflecting regular deposits of salary from Foodshala Pty Ltd from July 2015 until January 2017
-Letter of reference from Foodshala Pty Ltd reflecting the applicant’s employment from 4 July 2014 – 1 June 2017
-Contract of employment dated 24 June 2015 for the applicant with the Thornlie Store location as the place of employment.
-Copies of the daughter’s school reports
-Certificate of Title for the applicant’s property
-Various utility bills for the applicant’s residence
-BAS statement for Foodshala Pty Ltd for the quarter ending September 2015
The representative has submitted that :
No incorrect information was given. This was a typing error. The address on the agreement signed by the applicant and the employer (Foodshala Pty Ltd) was mistyped. The address typed was ‘Shop 33, Thornlie Square Shopping Centre, Thornlie Avenue, Thornlie Square Shopping Centre, Thornlie WA 6108’. This was previous premises of the business. The services of the applicant were shifted to another location for the best interest of the business, but the company was same and satisfied the criteria of Reg 5.19(9)b
They have not pinpointed the typing error till the cancellation of the visa. Due this typing error, the representative lodged application with this information (the same address). The applicant and the employer never noticed/remembered this information till the visa cancellation. So I request you to consider it silly typing mistake. The mistake turned the lives of applicants’ upside down. (sic)
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 issue for 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). Under s.101(b), a non-citizen must fill in his or her application form in such a way that no incorrect answers are given.
By operation of s.99 of the Act, 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 s.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.
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 ss. 101(b) (‘a non-citizen must fill in his or her application form in such a way that…no incorrect answers are given or provided’) in the following respects:
-In her application for a Regional Sponsored Nomination Scheme (Direct Entry) (subclass 187) visa, lodged in Australia on 5 May 2016 via the online lodgement facility, the applicant provided on page one for ‘Give details of the related nomination’, the answer, ‘Nomination TRN EGO9IDT9T7’.
In the associated nomination application TRN EGO9IDT9T7, her sponsor provided the information as outlined in paragraph 13 of this decision.
The nomination TRN EGO9IDT9T7 was approved by the Department on 4 May 2016 and on 20 December 2016 the applicant was granted a subclass 187 visa.
Information supplied to the Department from the City of Gosnells indicated the sponsor had ceased operating from the Thornlie shopping centre from at least 24 March 2015. The City of Gosnells provided confirmation that during an attempted inspection on 24 March 2015, Foodshala Pty Ltd was no longer operating at that shop.
The Tribunal has considered the available evidence, and is not satisfied that there has been non-compliance by the applicant in the way described in the notice given under s.107 of the Act. It therefore follows that the discretionary power to cancel the applicant’s visa does not arise.
In reaching this conclusion, the Tribunal has only had regard to the information that has been provided by the non-citizen (the applicant) in her visa application.
The information which the Department described in the s.107 notice was the details of the related nomination application. That information is not incorrect because it was the correct associated nomination application. The details of the incorrect information as outlined in the s.107 notice were in the associated nomination application which was not completed by the visa applicant.
The Tribunal has considered whether the information could be said to have been ‘caused to be given or provided’ or ‘given or provided on his or her behalf’. That is, could it be said by virtue of s.99 of the Act that the information was nonetheless provided by the non-citizen because she caused it to be provided or given by the sponsor or that the sponsor gave or provided the information on her behalf.
The Tribunal, whilst acknowledging that it is not bound by the terms of policy, has had regard to the Department’s Procedural Instruction. The policy gives an example of information that could be said to have been provided by the sponsor on a nominee’s behalf as being ‘a letter from a sponsor is attached indicating that the applicant is to be employed by a specific employer in a specific business’.
Despite the visa application and the application for sponsorship approval being related applications, they are nonetheless separate applications and in many cases are lodged by different applicants. A visa applicant may lodge their visa application in good faith with no knowledge of the related sponsor’s wrongdoing. To punish a visa applicant in these circumstances with the practical consequences of a visa cancellation appears to the Tribunal to be unjust.
The Tribunal therefore has no choice other than to find there has not been non-compliance by the applicant in the way described in the notice given under s.107 of the Act.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michelle East
Member

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 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 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 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‑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.

[2020] AATA 2287

23 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies