Kodithuwakku Kankanamge (Migration)

Kodithuwakku Kankanamge (Migration) [2022] AATA 1804 (16 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dinesh Kodithuwakku Kankanamge
CASE NUMBER:  2101077
HOME AFFAIRS REFERENCE(S):          BCC2019/1252794
MEMBER:Michael Cooke
DATE:16 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 16 May 2022 at 3:49pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – fraudulently issued training documents arranged by previous employer – valuable employee for current employer – family ties to the Australian community – international supply chain difficulties – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41
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 Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder submitted (as part of his Temporary Skill Shortage (Subclass 482) visa application) bogus documents within the meaning of section 5(1)(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.
As there was a s.375A Certificate attached to the Department file, the applicant was informed of it and invited to comment as follows:
INVITATION TO COMMENT ON VALIDITY OF S.375A CERTIFICATE – MR DINESH KODITHUWAKKU KANKANAMGE
I am writing in relation to the application for review made by you in respect of a decision to cancel your Subclass 482 - Temporary Skill Shortage visa.
On the Department file (BCC20191252794) is a s.375A certificate, signed and dated 5 February 2021. It states that it would be contrary to the public interest to release the material. The Tribunal’s preliminary view is that the certificate is valid.
A copy of the certificate is attached, and you are invited to comment on the validity of it by 31 August 2021.
The applicant’s representative responded that: ‘On its face, the certificate appears to be valid’. He asked: ‘Would the Tribunal be able to disclose the gist of the allegations and referrals?’
The Tribunal responded as follows:
Dear Mr Dobbie,
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
I refer to your email dated 29 August 2021.
The ‘gist’ of the confidential information subject to the s.375A Certificate dated 5/02/21 is the following:
· The Department received several anonymous allegations regarding the review applicant’s qualification and training, indicating that the training documents were fraudulently issued.
· The information further stated that the review applicant is not qualified in his nominated occupation and did not complete the training.
The Tribunal exercised its discretion to hold the hearing by telephone on 15 September 2021. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala (Sri Lanka) and English languages.
The applicant was 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
The applicant provided the Tribunal with a copy of the delegate’s decision record.
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.
Section 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
Section 98 of the Act provides that 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.
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 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.
Section 100 of the Act provides that 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.
Section 103. Bogus document 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.
For the purposes of the Migration Act the term ‘bogus document’ is defined at section 5(1) of the Act which states:
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.
Evidence of non-compliance:
The applicant applied for a Temporary Skill Shortage (Subclass 482) visa on 30 November 2018. He intended to work in the nominated occupation ‘Insurance Loss Adjuster’ for the nominated sponsor, Admiralty Maritime Consultants Pty Ltd. The applicant completed an on-line application form, ‘Temporary Skill Shortage Visa – Record of Responses’ in which he provided (in part) the following answers:
Education History
Give details of all past and current studies at secondary level and above.
Qualification: Other
Course name: Bridge Team Management
Institution name: International Maritime Training Center
Country of institution: INDIA
Date from: 19 Nov 2006
Date to: 20 Nov 2006
Declarations
WARNING: Giving false or misleading information or documents is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Have provided complete and correct information in every detail on this form, and on any attachments to it
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Yes
The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101(b) and 103 of the Act in the following respects: the applicant provided bogus documents to a Departmental officer who was performing a function under the Act, namely the assessment of a visa application.
The Tribunal is satisfied from the information in the delegate’s decision record that, had the Departmental officer been aware that the aforesaid documents were bogus at the time of assessing of the application, the Temporary Skill Shortage (Subclass 482) visa would not have been granted.
Consideration and findings as to whether there was relevant non-compliance.
The decision record (submitted to the Tribunal by the applicant) indicates that the applicant applied for a Temporary Skill Shortage (Subclass 482) visa on 30 November 2018 to work in the nominated occupation ‘Insurance Loss Adjuster’ for their nominated sponsor, ‘Admiralty Maritime Consultants Pty Ltd’.
In support of his training qualifications, the applicant provided the following documentation (in part):
·International Maritime Training Centre (Mumbai) - Certificate No: BTM/20-06/417 - Course name: Bridge Team Management - Issued by Capt. R. Prakash on 20 November 2006
·Mumbai Maritime Training Institute (Mumbai) - Certificate No: STPOTO/90/2007 – Course name: Specialized Training Programme on Oil Tanker Operations - Issued by Capt. O.P. Yadav & Capt. C.L. Dubey on 14 October 2007
Since the grant of the applicant’s visa, integrity checks were undertaken by the Department’s office overseas. These indicated that the above-named training documents were non-genuine. It appears that the applicant did not complete the Bridge Team Management course at the International Maritime Training Centre and the Specialized Training Programme on Oil Tanker Operations at the Mumbai Maritime Training Institute - at all. Moreover, (according to the delegate’s decision) the aforesaid certificates were not issued by the respective training centres and did not match their records.
The delegate found that the above-named training course documents which the applicant had submitted (as part of his Temporary Skill Shortage (Subclass 482) visa application were, therefore, bogus documents. The delegate made two findings. He found, firstly, that the applicant had not complied with section 103 of the Act because he had provided counterfeit documents. Secondly, he provided incorrect answers in his application for a Temporary Skill Shortage (Subclass 482) visa when stating that he completed the Bridge Team Management course at the International Maritime Training Centre because he never undertook the course. Therefore, in so doing he failed to comply with section 101(b) of the Act as well.
The applicant, in his response to the Department’s Notice of Intention to Cancel his visa (found in the delegate’s decision on file), submitted a Statutory Declaration. He stated that he was unaware the documents were bogus until they received the NOICC. He was surprised at the Department’s findings as the documents were provided to him by a previous employer, Penguin Shipping.
The applicant then went on to explain the circumstances which led to him being issued the two documents in question. He recounted that, in 2007, while employed as a deck cadet for a shipping agency, he was informed by the agency that two documents were required of him to comply with his then role as a deck cadet manning a shipping vessel. He insisted that the certificates were not about assessing competency. The shipping agency informed the applicant that it would organise the certificates for him. All that he needed to do was pay for the course fees. The applicant, in due course, paid the course fees as requested. He stressed that at no point did he think the certificates were forged. He then stated (in mitigation) that he understood that he was naïve in so thinking.
The applicant also stated that he would not have submitted the documents in question if he had known they were bogus. In fact, they were not required for the nominated position and did not provide details of his work experience. Therefore, the applicant considers he did not knowingly provide incorrect information at the time he applied for the Temporary Skill Shortage visa.
The Tribunal has read the applicant’s plea but is unpersuaded that he was unaware the submitted documents were bogus. The fact is that (naïve or otherwise) the applicant provided money for two certificates which elaborated a skill set he did not possess at that time and, furthermore, which he had never actually studied for academic purposes. Having been issued the certificates, he then proceeded to submit these bogus documents (which also contained incorrect information) to the Department which (feasibly) enhanced his visa application. What is surprising is his own claim that the documents had nothing to do with his actual contemporary profession which was the subject of the visa application (Insurance Loss Adjuster).
Bogus document
Bogus document in relation to a person, means a document that the Minister reasonably suspects is a document that:
(b) is counterfeit or has been altered by a person who does not have authority to do so;
Non-compliance with Section 101(b)
On the basis of the evidence from the Departmental investigation the Tribunal considers that the applicant actually provided an incorrect answer in his application for a Temporary Skill Shortage (Subclass 482) vis, in particular, at page 16 where he stated that he completed a Bridge Team Management course at the International Maritime Training Centre in Mumbai. In fact, the Department was provided with reliable confidential information indicating that he did not complete this course. As proof of this fact was that the Centre confirmed that the certificate did not match their records and was not issued by the International Maritime Training Centre.
The Tribunal finds that, plainly, by answering ‘yes’ at the Declaration section (page 24) of the form ‘Temporary Skill Shortage Visa – Record of Responses’, the applicant agreed to provide complete, correct, and up-to-date information in his application. In fact, the applicant did not do so because he did not complete the claimed Bridge Team Management course at the International Maritime Training Centre in Mumbai.
For these reasons, the Tribunal finds that there was non-compliance with both ss.101(b) and 103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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 r.2.41 of the Regulations. Briefly, they are:
· the correct information
The correct information is that the applicant did not complete the Bridge Team Management course at the International Maritime Training Centre as claimed. The International Maritime Training Centre has confirmed that they did not issue the certificate to the applicant and, furthermore, that the information contained within the certificate did not match their records.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the content of the genuine document (if any)
The information available to the Tribunal indicates that the applicant provided a certificate from the International Maritime Training Centre (Mumbai) for a course in Bridge Team Management, issued by Capt. R. Prakash dated 20 November 2006. He also furnished a certificate from Mumbai Maritime Training Institute for a course in Specialized Training Programme on Oil Tanker Operations, issued by Capt. O.P. Yadav & Capt. C.L. Dubey on 14 October 2007.
Integrity checks undertaken by the Department’s office overseas found both documents to be non-genuine. It was confirmed that both documents were not issued by the respective training centres and the information contained within them did not match their records.
The Tribunal gives this consideration significant weight in favour of cancellation.
· whether the decision to grant a visa or immigration clear the applicant was based, wholly or partly, on incorrect information or a bogus document
The applicant claims the certificates provided had no relationship to the nominated occupation. However, the Tribunal notes, nevertheless, that they were tendered as part of his visa application process.
It is well apparent that the Department’s decision to grant the applicant a Temporary Skill Shortage visa was based in part on the information given up by him. In mitigation he has claimed the documents had no relationship to the nominated position he was seeking in his visa application. His employer has been forthright in supporting the applicant by confirming he has the appropriate skill set and performs his job excellently. This may be the case but effectively the bogus documents enhanced his overall skill set and experience in his resume. Feasibly, they may have contributed added positive weight to the delegate’s conclusion. Furthermore, the Tribunal considers that tendering bogus documents and, resultingly, incorrect information to the Department is unethical behaviour which can compromise the entire visa system.
The Tribunal gives this consideration some weight in favour of cancelling the visa.
· the circumstances in which the non-compliance occurred
The Tribunal observes that the circumstances in which the non-compliance occurred was that the applicant lodged an application for a Temporary Skill Shortage visa on 30 November 2018. Along with the application, he provided bogus documents, as previously elaborated. The Tribunal is satisfied that he has also provided incorrect answers about his skill education training when indicating that he had completed the Bridge Team Management course in November 2006.
In his response to the NOICC, he claimed he did not know the training documents were bogus. He insisted that he did not knowingly provide incorrect answers to questions about completing the Bridge Team Management because he did not know the training documents were bogus. Subsequently he has submitted a Statutory Declaration to the Tribune in which he has admitted giving false or misleading information.
The Tribunal is not satisfied that he did not know the training documents were bogus and that they did not contain incorrect information. The Tribunal finds he paid money for skill certificates organised by his proposed employer in 2007. Furthermore, he never performed the studies for which the certificates were evidence and which he informed (in oral evidence) were to do with his employment as a seaman.

The Tribunal cannot imagine why he submitted certificates for skills which had nothing to do with the proposed nominated occupation - ‘Insurance Loss Adjuster’. Possibly, the Tribunal surmises, he may have wished to boost the perception of his all-round skill set. The motivation of the applicant in submitting the certificates to the Department is thus unclear. However, it demonstrates he was willing at that time to be complicit in obtaining bogus training certificates to gain employment. He then willingly tendered these documents as part of his visa application. Therefore, this is evidence that twice already he has duped the Department regarding his employment qualifications.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the present circumstances of the applicant
The applicant first arrived in Australia on 21 August 2014 as the holder of a Temporary Work (Skilled) (Subclass 457) visa. He was nominated to work in the occupation of ‘Marine Transport Professional’ for his nominated sponsor ‘Sedgwick Australia Pty Limited’. Several departures and arrivals were made by him as the holder of that visa.
On 27 March 2019, the applicant arrived in Australia as the holder of a Temporary Skill Shortage visa. He was nominated to work in the occupation ‘Insurance Loss Adjuster’ for his nominated sponsor ‘Admiralty Maritime Consultants Pty Ltd’.
The applicant is married to Ms Thilini Nadeeshani Kodithuwakku Kankanamge. He has two children, Mindula Sanketh Kodithuwakku Kankanamge and Kemi Ivenya Kodithuwakku Kankanamge. One of them, Kemi Ivenya Kodithuwakku Kankanamge, was born in Australia and all family members are currently in Australia residing with the applicant.
The applicant provided the Department with a supporting reference letter from his current nominated sponsor, ‘Admiralty Maritime Consultants Pty Ltd’. He is presently the holder of a Bridging visa with work rights. The Tribunal has been informed (in additional information) that he remains employed with his nominated sponsor, Admiralty Maritime Consultants Pty Ltd. They, in their witness statement, insist he is a valuable employee particularly with their international clients and importantly when coping with the impact of COVID on their business.
The Tribunal accepts this information and give this consideration considerable weight against cancelling the visa.
· the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant has been co-operative throughout the cancellation process. He responded to the Department’s NOICC within the prescribed timeframe. The Tribunal is not aware of any other adverse behaviour.
The Tribunal gives this consideration some weight against cancelling the visa.
· any other instances of non-compliance by the applicant known to the Minister
The applicant initially submitted one of the bogus training documents (the Bridge Team Management course undertaken at the International Maritime Training Centre) to the Department at the time he applied for the Temporary Work (Skilled) (Subclass 457) visa in December 2011. He subsequently provided the same bogus document when he applied for the Temporary Skill Shortage visa in November 2018.
The Tribunal is concerned that the applicant has engaged in repeat behaviour and, therefore, gives this consideration some weight in favour of cancellation.
· the time that has elapsed since the non-compliance
The Tribunal observes that the non-compliance occurred on 30 November 2018 which is over 3 years ago.
It is apparent from additional information which he has submitted to the Tribunal that, since the non-compliance occurred, he and his family have formed ties to the Australian community. He has been residing and working in Australia since August 2014. His older child has commenced school. He has had a further Australian-born child.
In view of this information, the Tribunal gives this consideration significant weight against cancellation.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal is not aware of any breaches of the law by the applicant.
The Tribunal gives this consideration significant weight against cancellation.
· any contribution made by the holder to the community.
The applicant has claimed to have contributed to the community through his employment in an important Australian maritime industry. He has stressed that his profession is very important to the conduct of Australia’s international trade. His employer issued the following plea to the Tribunal:
If Dinesh’s visa is cancelled the company will be left in a dilemma as to how it can cope with the workload as it will not be in a position to recruit and especially train a new employee under lockdowns in place now. We understand why the visa was cancelled but request you to consider reinstating it so Dinesh can continue working in his present role which will assist immensely for the mid-term sustainability of the organisation and continue keeping its current employees on its books during these most difficult times.
The Tribunal gives this consideration significant weight against cancellation.
Consideration of the prescribed factors where relevant or where not relevant; any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s.140.
The applicant is married to Ms Thilini Nadeeshani Kodithuwakku Kankanamge. He has two children, Mindula Sanketh Kodithuwakku Kankanamge and Kemi Ivenya Kodithuwakku Kankanamge. His spouse and children were granted secondary visas based on being ‘members of the family unit’ of the primary visa holder. The cancellation of the visa would lead to the consequential cancellation of the applicant’s dependents’ visas.
The Tribunal gives this consideration some weight against 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 Tribunal has considered whether cancellation of the applicant’s visa would be in breach of the convention on the Rights of the Child (CRC), which states that the best interests of the child must be the primary concern in making decisions that affect them - particularly whether a child will be separated from the family unit.
The Tribunal observes that the applicant’s two children (Mindula Sanketh Kodithuwakku Kankanamge and Kemi Ivenya Kodithuwakku Kankanamge) are Sri Lankan citizens aged four and 1 year 9 months old - respectively. When considering both children’s ages, it is can readily be seen that Mindula Sanketh Kodithuwakku Kankanamge is of school age in Australia. The Tribunal is satisfied that, were the applicants required to return to Sri Lanka, Ms Mindula would be able to comfortably reintegrate into a new life in Sri Lanka and commence her primary school education in Sri Lanka. Ms Mindula was born when the parties returned to Sri Lanka on an earlier occasion. Her sister is very young and not of school age.
In a situation where the applicant’s visa was cancelled, he could voluntarily return to Sri Lanka with his spouse and children and his family would not be separated from their parents. The Tribunal is satisfied overall that there would not be a breach of CRC as the family unit would be permitted to remain together.
Accounting for the above, the Tribunal gives this consideration a little weight in favour of cancelling of the visa.
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
The applicant is a national of Sri Lanka. There is no information before the Tribunal which indicates visa cancellation would impact Australia's international obligations or would be in breach of Australia's non-refoulement obligations, nor has the applicant raised any concerns about this consideration in their response to the NOICC.
The Tribunal has also considered whether cancellation of the applicant’s visa would cause his children to be separated from the family unit. The visa holder’s two children, Mindula Sanketh Kodithuwakku Kankanamge and Kemi Ivenya Kodithuwakku Kankanamge are both Sri Lankan citizens being four and 1 year 9 months old, respectively.
If the primary applicant’s visa were cancelled, he could voluntarily return to Sri Lanka with his spouse and children. The Tribunal observes that the applicant has previously returned with his wife when she fell pregnant with their first child. The Tribunal is satisfied that the applicant’s young children - Mindula Sanketh Kodithuwakku Kankanamge and Kemi Ivenya Kodithuwakku Kankanamge - would not be separated from their parents. The Tribunal is satisfied that if the visa cancellation were to be affirmed there would not be a breach of CRC as the primary applicant’s family unit would remain together.
The Tribunal gives this consideration some weight in favour of cancelling of the visa.
·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 visa were cancelled, the applicant would no longer hold a valid visa and would become an unlawful non-citizen. He could be detained under section 189 of the Act and be then removed from Australia under Section 198 of The Act. Saying that, he has the option to voluntarily depart Australia. The applicant would also be subject to section 48 of the Act which may prevent him from applying for certain visas while in Australia. He might also be affected by Public Interest Criterion 4013 which limits the grant of further temporary visas to him for a specified period.
The Tribunal gives this consideration some weight against cancelling the visa.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant’s employer has stated the following:
If Dinesh’s visa is cancelled the company will be left in a dilemma as to how it can cope with the workload as it will not be in a position to recruit and especially train a new employee under lockdowns in place now. We understand why the visa was cancelled but request you to consider reinstating it so Dinesh can continue working in his present role which will assist immensely for the mid-term sustainability of the organisation and continue keeping its current employees on its books during these most difficult times.
The Tribunal has considered the applicant’s employer’s plea. The Tribunal has also considered the recent and well publicized serious breakdown of the Sri Lankan economic and political system.
The Tribunal is of a view that cancellation who considerably affect the workings of an important Australian maritime enterprise at a time of international supply chain difficulties sourced from the pandemic. His employer has categorised the threat of cancellation of his visa as damaging to the firm. The Tribunal is inclined to agree with his employer.
At the same time, cancellation would thrust the family into an invidious personal situation involving serious financial hardship from any proposed return to the contemporary economic dislocation of Sri Lanka. The Tribunal observes that, at the same time, the family faces the potential threat of violence and possible injury from political street rioting and other disruptions to the peace and good order of contemporary Sri Lanka.
The Tribunal has an overall concern with the repeat behaviour of the applicant in tendering bogus documents - even if those documents have nothing to do with his actual skill category. However, the Tribunal finds that the hardship claims elaborated above outweigh all the other adverse considerations canvassed in this review.
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.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.
Michael Cooke
Senior 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.
103Bogus 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).
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.

[2022] AATA 1804

16 May 2022

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Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction