Mahon (Migration)

[2017] AATA 2491

Mahon (Migration) [2017] AATA 2491 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Derek Anthony Mahon

CASE NUMBER:  1605777

DIBP REFERENCE(S):  BCC2015/3787818

MEMBERS:Jan Redfern (Presiding)
Hugh Sanderson

DATE:29 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 29 November 2017 at 10:55am

Catchwords

Migration – Subclass 186 (Employer Nomination Scheme) visa – nominated occupation as a Project Administrator – cancellation under s.109 – cancellation of visa following audit and sponsorship bar of the nominating employer – whether incorrect information or bogus document provided – consideration of ANZSCO definition – relevance of VETASSESS criteria – finding that information provided not incorrect and documents not bogus – non-compliance in way described in s.107 notice not established – power to cancel visa does not arise – cancellation set aside

Legislation

Migration Act 1958, ss 101, 103, 107, 109(1), 140M

Migration Regulations 1994

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided incorrect information and a bogus document in support of his application for the grant of his subclass 186 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.

3. We have concluded that the ground for cancellation has not been made out and the decision to cancel the applicant’s visa should therefore be set aside. Our reasons follow.

   BACKGROUND

4. The applicant is a citizen of Ireland and is currently 29 years old. He was granted a subclass 457 Temporary Work visa on 25 June 2010. His sponsor of that application was Murphy Pipe and Civil Pty Ltd (Murphy Pipe and Civil). The position for which he was nominated was Project or Program Administrator.

5. The applicant applied for a subclass 186 - Employer Nomination Scheme visa on 9 April 2013. The applicant’s de facto partner, Susan Small was a secondary applicant of that application. The applicant was again sponsored by Murphy Pipe and Civil and the position for which he was nominated was Program or Project Administrator (ANZSCO 511112). In his application, he stated that he had been employed as a Project Administrator since 2008. Various documents were provided in support of the application.

6. The Department of Immigration and Border Protection (the Department) conducted an audit of Murphy Pipe and Civil, which commenced in August 2014. As a result of this audit, a delegate of the Minister made a decision under s.140M of the Act to bar Murphy Pipe and Civil from making future applications for approval as a standard business sponsor. Murphy Pipe and Civil sought review of this decision. The Tribunal upheld the bar but varied the period. This decision has been published by the Tribunal (Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960). Following this decision, the Department reviewed the applications of a number of employees who had been sponsored by Murphy Pipe and Civil, including the applicant. As a result of this audit, the Department considered the applicant had provided false and misleading information and bogus documents to the Department in support of his application for a subclass 186 - Employer Nomination Scheme visa. A delegate of the Minister wrote to the applicant on 18 January 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act (NOICC).

7. The delegate noted the following particulars for the grounds for cancellation:

   (1)Information obtained from Murphy Pipe and Civil showed that from 25 June 2010 to 30 May 2013 the applicant was primarily employed as a “Mobile Plant Operator” or a “Rigger or Labour/Trades Assistant” or similar role; and

   (2)The letter provided in support of the application from Murphy Pipe and Civil provided false and misleading statements as to his employment and therefore was a bogus document.

8. Based on this information, the delegate stated there was reason to believe the applicant had never worked in the occupation of Project or Program Administrator and never undertook the work outlined in his nomination application or as described in his 457 visa application. The applicant was invited to comment on or respond to this information.

9. The applicant responded on 27 January 2016 providing a statement by him together with other documents in support of his claim that he had been employed as a Project or Program Administrator. In his statement, the applicant made the following claims:

   (1)He was restricted in his capacity to provide documents as he was no longer working for Murphy Pipe and Civil and they had not been forthcoming with their documentation;

   (2)The applicant commenced working with Murphy Pipe and Civil in 2008 while on a Working Holiday visa employed as a drainer/pipe layer;

   (3)Due to his performance on the job, he was given promotions and in May 2010 was given the position of a Project Administrator and his pay rate increased;

   (4)As he was previously working as a drainer/pipe layer, it appeared that Murphy Pipe and Civil had not updated his employment file. The applicant’s payslips are titled “leading hand”;

   (5)The applicant now runs his own business and if his visa was cancelled it would cause problems for his employee and his clients. He has outstanding debts which would not be able to be paid;

   (6)The applicant has spent many years in Australia and considers Australia his home. The applicant has volunteered during the Victorian Black Saturday fires and the floods in Chinchilla, Queensland; and

   (7)He and his fiancée (not Susan Small) are settled in Australia and are planning to start a family and he plans to sponsor her for a Partner visa.

10. The applicant provided various payslips showing his salary rate and letters from former employers stating that he was working as a leading hand and then as a supervisor. He also provided a letter from his tax agent which stated that his job description was never updated. It was claimed that the applicant’s occupation was Project Administrator in the relevant period.

11. The delegate who considered the matter found the applicant had provided false and misleading information and bogus documents on the following grounds:

    (1)The definition of Project Administrator from VETASSESS notes the role is administrative and not involved in the usual tasks of the primary role. The occupation would normally require a diploma or higher level qualification and post qualification employment;

    (2)The applicant had not provided any information that he had any relevant formal academic qualification to undertake the role of Project or Program Administrator;

    (3)The applicant provided payslips showing that in August 2010 his position was described as Construction Worker CW 4 Level 4;

    (4)The applicant provided payslips from April 2012 indicating a salary of $140,000 which would be consistent with his claim of working as a Project Administrator but these were for a period well after the grant of the 457 visa;

    (5)The letters of support describing him as a “leading hand” and “supervisor” do not indicate that he was employed solely as a Project Administrator for the duration of his 457 visa;

    (6)The timesheet from Murphy Pipe and Civil showing him as a “supervisor” is not consistent with him being employed solely as a Project Administrator;

    (7)The tax accountant’s letter indicates the applicant provided his own tools and equipment on the site, which is not consistent with a person who performs a purely administrative role;

    (8)As the applicant was claiming to be a Project Administrator in 2010 when he was only 22 years old it is unlikely that he would have had the required qualifications; and

    (9)The description of the work performed by the applicant while employed by Murphy Pipe and Civil indicates he was working as a leading hand and more appropriately described as a Mobile Plant Operator (ANZSCO minor code 721) or Rigger Labourer/Trades Assistant (ANZSCO minor code 8219) and not as a Project or Program Administrator.

12. Taking these matters into account, the delegate found (at [38] – [40]) that the applicant had not been employed as a Project Administrator for the duration of his 457 visa. He had been employed as a Construction Worker and then a Leading Hand which was said not to be ‘consistent with a Project Administrator role’. The applicant had therefore provided false and misleading information and bogus documents in support of his application for the 186 visa. After considering all the circumstances of the applicant the delegate considered the nature of the non-compliance and the reasons to cancel the visa outweighed the reasons not to cancel. Accordingly, the applicant’s visa was cancelled.

    LEGISLATIVE FRAMEWORK AND QUESTIONS FOR DETERMINATION

13. 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.

14. 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.

15. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in the administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or that the grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

16. While the Tribunal is not bound by the rules of evidence and the decision-maker is not bound to follow legal principles such as those set out in Briginshaw v Briginshaw,[1] in deciding whether the ground for cancellation is made out, it is appropriate to have regard to the nature of the allegations and the gravity of the consequences.[2] Relevant to the facts of this case, the cancellation of a permanent visa, where the visa holder has been residing in Australia for years, has serious consequences and, in our view, any factual findings should be based on logical and probative material.

    [1] (1938) 60 CLR 336. In that case, Dixon J held at 362 that in civil matters, ‘the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal [of fact]’.

    [2] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120].

17. The questions for determination are therefore:

    (1) Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

    (2) If the answer to (1) is yes, was the notice valid?

    (3) If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?

    (4) If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

    INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING

18. The Tribunal was provided with the Department file which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.

19. The Tribunal conducted a telephone directions hearing on 28 June 2017, as a result of which, the applicant provided further evidence and submissions in support of the claims.

20. The applicant appeared before the Tribunal on 18 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

21. The applicant provided further information to the Tribunal, including the following:

    (1)Statutory declaration of the applicant;

    (2)Statutory declaration of the applicant’s former supervisor;

    (3)Statutory declaration of the applicant’s former partner;

    (4)Statutory declaration of the applicant’s current partner;

    (5)Various work references and statutory declarations from former colleagues who had worked with the applicant at Murphy Pipe and Civil. These documents were consistent with the applicant’s claims about the nature of his duties; and

    (6)Copies of various documents in respect of work done by Murphy Pipe and Civil signed off by the applicant on behalf of the company.

22. The applicant gave evidence at the hearing. The following is an outline of his evidence.

23. The applicant provided details of his work history. After he finished school the applicant started work with Ward and Burke Construction in Ireland. About three months after starting work he was given the added responsibility of a leading hand. If there were any issues it was his responsibility to report those to his supervisor who would then make any further directions. The Tribunal read to the applicant the definition of a Project Administrator in ANZSCO. The applicant agreed that based on his current understanding of the position of a Project Administrator the role he had at Ward and Burke Construction was not a Project Administrator.

24. The applicant travelled to Australia in 2008 and commenced work with Murphy Pipe and Civil soon after his arrival as a pipe layer. After about three or four months he was given the leading hand role directing the labourers of his crew. He was still working under a supervisor who had to sign off timesheets and other documents. His responsibilities increased in 2009 where he was looking after his own crew, but still working under a supervisor. In 2010 he was placed in charge of a crew of four. He was required to ensure that all work met quality assurance requirements and was required to sign off on these statements. He supervised the crew’s performance and work completed by his crew. He advised his supervisor of any matters requiring attention and any variations in the work that needed to be done.

25. In 2010 the applicant commenced working on the Sino Iron Ore project in Western Australia. He was the supervisor for one of the six crews and was in this position for approximately 18 months. He reported to the site engineer and was responsible for all issues with his crew. This included signing off on timesheets, daily reports, quality assurance reports and managing the overall project. It was his responsibility to resolve any problems concerning the program and report any changes required.

26. Once his role on the Sino Iron Ore project was finalised he was moved to a project in Queensland where he worked with a small crew for six weeks. This position did not have the same responsibility, but he was appointed to this role pending another position becoming available. He was then transferred to other projects in Queensland where he had similar responsibilities to those he had in Western Australia. It was his role to supervise his team, report to management and deal directly with clients. In November 2012 he was working out of the head office of Murphy Pipe and Civil preparing for a project at Chinchilla. This role involved hiring over 100 people, checking health and safety requirements, managing the paperwork associated with the employment and management of the project including checking that all required work tickets had been obtained by the people to be employed. The applicant was primarily involved with the Chinchilla worksite organising training and ensuring the operation was able to be completed. He worked in the office and on-site and reported directly to the project engineer. It was necessary to work on-site because he would be required to be able to see what was happening on the site, what was needed and address any problems that arose on the site. He was responsible for reporting and liaising directly with the client for the project. He set up various crews to ensure the work was done correctly. He reported to the site engineer who then reported to the head engineer. The applicant remained in this position until the end of 2013. The applicant resigned from working with Murphy Pipe and Civil as he was not satisfied with the way they treated their workers.

27. The applicant said that when he was applying for the visa he provided his immigration agent with the details of his work history and they advised him how to complete the form. The applicant said that when the visa application had been prepared by his agent he had described the type of work that he had been doing and his agent had advised him that the role he was undertaking was a Project Administrator. He said that he accepted this advice from his migration agent, although he said he was not really sure what that description meant.

28. The applicant provided information as to his current circumstances. In summary, he has lived in Australia since 2008 and has worked as a supervisor in various building and infrastructure projects since he left Murphy Pipe and Civil in 2014 and started his own business in 2015. He is in a relationship since 2013 with his current partner who he met in Australia but she is originally from Ireland. They plan to marry and have been undergoing IVF treatment in Australia.  The cancellation of his visa has been very stressful for him and his partner and they believe it would be a significant setback for their plans to have children if they had to return to Ireland. The applicant’s former partner provided a statutory declaration. She stated that after she and the applicant broke up in 2013, she continued working and was currently working in the Yarra Valley on a pipeline project. She does not believe that she would have had such an opportunity in Ireland and she was saving to buy a house in Melbourne. She was currently in a serious relationship which commenced in November 2016. It is clear from this statement that cancellation of the applicant’s fees and the consequential cancellation of her visa would have a significant impact on her.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. 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 (being the NOICC referred to above) complied with the statutory requirements.

1. The critical issues before the Tribunal are, therefore, whether there was non-compliance in the way described in the s.107 notice and, if so, whether the visa should be cancelled.

   Was there non-compliance as described in the s.107 notice?

2. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 by providing incorrect answers in the visa application and s.103 by providing bogus documents in support of the application.

3. The allegation raised was that although claiming to have been employed as a ‘Project Administrator’ and providing a letter from the applicant’s employer and sponsor for the visa to this effect, the applicant was in fact employed as a leading hand and was not employed in an administrative role. The applicant denies he has provided incorrect information or bogus documents. He accepts that his role was not an administrative role but denies that he or Murphy Pipe and Civil represented that this was the case. The applicant also accepts he does not have formal academic qualifications but says he did not make such a claim in any event.

4. In order to assess whether there was non-compliance by the applicant in providing incorrect answers and bogus documents in support of his application, it is necessary to identify the answers said to be incorrect and the documents said to be bogus. These matters have been set out in the NOICC and in the decision of the delegate.

5. The incorrect information is said to be the information set out in pages 8-9 of the application as follows:

   Give details of employment undertaken in the last 10 years.
   Position: Project Administrator
   Employer name: Murphy Pipe and Civil
   Country: AUSTRALIA
   Date from: 17 Jan 2010
   Date to:04 Apr 2013
   Description of duties: Please see detailed statement of service attached
   Is this employment related to the nominated position? Yes

6. The document said to be bogus is a letter from Tom Dermody, director at Murphy Pipe and Civil dated 13 February 2013, which was the ‘detailed statement of service’ document which was attached to the application.  This letter included information to the following effect:

   This is to confirm that Derek Mahon is currently employed by Murphy Pipe and Civil Pty Ltd on a subclass 457 Visa, which was granted on 25 June 2010. His position is full-time, working a minimum 38 hour week, as project/program administrator

   Mr Mahon’s duties include the following tasks:

   ·liaise with clients, employees and contractors to answer questions, disseminate or explain information, take orders and address complaints;

   ·order materials and supplies in a timely manner;

   ·complete work schedules, manage calendars and arrange appointments;

   ·process and prepare documents, such as legal, government forms and expense report;

   ·monitor and direct the work of less experienced employees;

   ·prepare on-site toolbox meeting agendas, attend meetings and record and transcribe minutes;

   ·represent company on-site to assist the head contractor in the planning and organising of current projects;

   ·coordinate the work of excavators on site to ensure compliance with plans, specifications and regulations and to ensure proper techniques and materials are used according to contract specifications; maintain records of construction progress and departures from specifications for purposes of variations encountered during construction;

   Please note the nominated position will be a (sic) full-time for a period of three years as per employment contract.

7. In the decision record, the delegate draws heavily on the interpretation of Project Administrator made by VETASSESS, which in turn refers to the description of Project Administrator set out in the Australian and New Zealand Standard of Classification Occupations (ANZSCO). VETASSESS is a vocational education and training assessment provider. If the Department requires an applicant to have an assessment or if an applicant chooses to obtain an assessment to facilitate the processing of their application, applicants may use VETASSESS for this assessment.  In this case, the applicant was not required to obtain such an assessment nor did he do so.   

8. ANZSCO was developed in 2006 and is a skill-based classification of occupations for all jobs in the Australian workforce. The Australian Bureau of Statistics, which publishes ANZSCO, has given the following guidance in relation to the interpretation of ANZSCO occupation definitions:[3]

   [3] Australian Bureau of Statistics website ANZSCO OCCUPATION DEFINITIONS

   ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

   The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

9. Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO.

10. The information in the application which was identified by the delegate as being incorrect was the statement that the applicant had been employed as a Project Administrator with Murphy Pipe and Civil from 17 January 2010 to 4 April 2013.  As already noted, the detailed statement of service attached was letter from Murphy Pipe and Civil dated 13 February 2010. The letter was also said to be bogus but the basis for this finding is less clear. Critical to the delegate’s conclusions were the findings that the applicant was employed as a leading hand then supervisor which were not ‘administrative roles’. This was said to be inconsistent with the role of a Project Administrator which was ‘administrative’.

11. To understand these findings it is relevant to consider the ANZSCO description of the occupation of Project Administrator. The position of a Project or Program Administrator is described in ANZSCO as follows:

    CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    ·developing, reviewing and negotiating variations to contracts, programs, projects and services

    ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

    ·managing paperwork associated with contracts, programs, projects and services provided

    ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

    ·advising senior management on matters requiring attention and implementing their decisions

    ·overseeing work by contractors and reporting on variations to work orders

    ·preparing and reviewing submissions and reports concerning the organisation's activities

    ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

    ·reviewing and arranging new office accommodation

    Occupations:

    511111 Contract Administrator
    511112 Program or Project Administrator

    511112 PROGRAM OR PROJECT ADMINISTRATOR

    Alternative Title:

    Project Coordinator

    Plans and undertakes administration of organisational programs, special projects and support services.

    Skill Level: 2

12. We do not accept the delegate’s findings that the role of Project Administrator is purely administrative in nature. The position of Project Administrator, as described above, is a general description that would cover a broad and diverse range of occupations and industries. The definition recognises that qualification for the position may arise from relevant experience (assessed as at least three years) or formal academic qualifications which may require some on-the-job training. The description does not restrict the position to office work and expressly notes that the position includes the implementing of managerial decisions, overseeing work by contractors and reporting on variations to work.

13. Although it is noted in the delegate’s decision that VETASSESS would require a diploma or higher qualification, this is not a prerequisite in the ANZSCO definition. ANZSCO recognises that qualification for the position may arise from relevant experience of at least three years without any formal academic qualifications. The description goes on to state that if the person does have academic qualifications some on-the-job training may be necessary. The applicant does not have any formal academic qualifications and he has never made such a claim.  The applicant claimed he was qualified for the position of Program or Project Administrator based on his work history and it appears he was assessed on this basis.

14. The applicant was not required to undertake a skills assessment and it is clearly stated in his application that he did not have one. The skills assessment formula used by VETASSESS does not form part of the position description in ANZSCO nor was it part of the application. It is therefore difficult to understand why this was used as one of the grounds leading to cancellation.

15. The applicant presented as a genuine and truthful witness before the Tribunal. His evidence about his role and work history was credible and was corroborated by various references and statutory declarations from colleagues and organisations unrelated to Murphy Pipe and Civil, which supported the applicant’s contention that his work and responsibilities from 2010 went well beyond the role of a leading hand. Although working on site, which would be expected in light of the industry in which he was working and his responsibilities, the Tribunal finds that the applicant was directly involved in responding to inquiries and resolving problems in relation to the project to which he had been assigned, he was managing the paperwork associated with those projects (including completing timesheets), he prepared written reports which were submitted to site engineers and the project clients. The applicant was also required to sign off on the quality assurance for the work done by the crew he was supervising.

16. In our view, these duties fall within the definition of Project Administrator. They are consistent with the duties the applicant was said to have performed as set out in the letter from Murphy Pipe and Civil. The letter specifically refers to the fact that the applicant was representing the company on-site and was coordinating on-site work.  It is not apparent that this was an issue that caused concern at the time the subclass 186 visa application was being processed. In other words, the Department was provided with information that the applicant’s role was not purely administrative yet the visa was granted. Given our findings about the applicant’s role in the relevant period, we find that the content of this letter was not false or misleading. It represented an accurate account of the applicant’s duties at the relevant time.

17. It is also relevant to note that the applicant’s pay rate over this period indicates that he was employed in a senior position with significant responsibilities. While there were short periods when the applicant was involved in smaller projects where his duties were not in line with the role of a Project Administrator, it is clear from the evidence that these appointments were transitional pending his appointment to a more responsible position. The applicant maintained his pay rate over these periods between specific projects. The applicant obtained “tickets” in respect to various roles as these were offered to him and, as a supervisor, it was his responsibility to know the limits of the workers he was supervising.

18. We have taken into account the documentation obtained from the Department during the audit conducted on Murphy Pipe and Civil. However, we accept, as was also accepted by the Tribunal in the previous sponsorship bar case referred to above, that Murphy Pipe and Civil often did not accurately maintain documentation which reflected the true occupation of the applicant. Shortcuts were taken for administrative purposes, such as describing the applicant as a “PL Construction Worker CW4 Level 4” instead of his correct position. As the applicant accepted the pay rate he was receiving there did not appear to be any reason why he would challenge the description of his position as it was not relevant to him at the time. The Tribunal therefore places little weight on this evidence.

19. The Tribunal therefore finds that the applicant did not provide false and misleading information in respect of his visa application describing his role as a Project Administrator in the period 17 January 2010 to 4 April 2013. The Tribunal also finds that the letter provided by Murphy Pipe and Civil accurately reflects the work undertaken by the applicant from June 2010 and is not a bogus document.

    Conclusions

20. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

    Jan Redfern
    Deputy President

    
    

    Hugh Sanderson
    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.