Marsden (Migration)

Marsden (Migration) [2017] AATA 2111 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Adam Douglas Marsden
CASE NUMBER:  1609427
DIBP REFERENCE(S):  BCC2015/3787791
MEMBERS:Jan Redfern (Presiding)

Hugh Sanderson
DATE:13 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 856 (Employer Nomination Scheme) visa.

Statement made on 13 November 2017 at 12.00 pm

CATCHWORDS:
Migration – Subclass 856 (Employer Nomination Scheme) visa – visa granted on basis that applicant was working as 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 – non-compliance established - discretionary considerations – cancellation set aside
LEGISLATION
Migration Act 1958, ss 101, 102, 103, 104, 105 or 107(2), 109(1), 140M
Migration Regulations 1994, Schedule 2, r 2.41
CASES

MIAC v Khadgi (2010) 190 FCR 248

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 applicant’s Subclass 856 (Employer Nomination Scheme) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the claims that the applicant had been employed as a Project Administrator coordinator were incorrect and documents provided in support of that claim were bogus. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

Background

The applicant is a citizen of Ireland and is currently 33 years old. He was granted a subclass 457 visa on 26 June 2008 on the basis of him being employed as a Drainer. He was sponsored in that application by Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil).
The applicant applied for a subclass 856 Employer Nomination Scheme visa on 19 August 2011. Included in that application was his partner at that time, Donna Shannon. The position for which he was sponsored was ‘Program or Project Administrator’ which recorded in the Australian and New Zealand Standard of Classification Occupations (ANZSCO) code 511112. The applicant and Ms Shannon were granted visas on 30 August 2011.
ANZSCO was developed in 2006 and is a skill-based classification of occupations for all jobs in the Australian workforce. It was developed as the national standard for organising occupation-related information for purposes such as policy development and review, human resource management, and labour market and social research. Since 2006 the various occupation lists used by the Department of Immigration and Border Protection (the Department) and its predecessors have been derived from ANZSCO.
In the information provided by the applicant in support of his application for the subclass 856 visa, the applicant claimed that he had been working as a ‘Project Administrator Coordinator On-site Drainage Works’ for Murphy Pipe and Civil from March 2008 to the time of the application. Prior to that, from 2001 he had worked as a pipe layer/drainer. The applicant provided a letter from Murphy Pipe and Civil stating that the applicant had been employed in the role of an ‘On-site Project Administrator Coordinator’ and setting out the work he was required to do. An employment agreement was provided setting out the claim that the applicant was employed in the position of ‘Project Administrator’.
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. A delegate wrote to the applicant on 5 April 2016 with a Notification of Intention to Consider Cancellation under s.109 of the Act on the grounds that he had provided false and misleading information and bogus documents to the Department in support of his application for his subclass 856 Employer Nomination Scheme visa.
The delegate noted the following particulars for the grounds for cancellation:
(1)A company spreadsheet entitled ‘Training Matrix (Main) Rev 11’ listed the applicant’s position as “Excavator Operator”;
(2)a company spreadsheet entitled ‘MPC Personnel – 21.10.11’ listed the applicant as a permanent resident in his role as ‘Operator/Excavator’; and
(3)A CV of the applicant citing his employment with Murphy Pipe and Civil from January 2008 to February 2013 as being in the position of “Operator”.
Based on this information, the delegated stated that 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 delegate stated that there was reason to believe that the applicant had been employed as a Plant Operator and had provided false and misleading information and bogus documents when he claimed that he was employed as a Project or Program Administrator.
The applicant’s migration agent provided a response to the notification and provided further documents in support of their submissions. In the submissions, the applicant disputed the allegations in the Notice and provided the following submissions as to why his visa should not be cancelled:
(1)    The applicant has been in a de facto relationship since 2012 with Jessica Allison who is an Australian citizen and they are expecting their first child in July 2016;
(2)    Ms Allison is employed with Murphy Pipe and Civil;
(3)    The applicant is self-employed, operating a profitable earthmoving and civil engineering business;
(4)    If the applicant’s visa were cancelled this would force him to close his business and return to Ireland where he would have no guarantee of employment;
(5)    The applicant’s partner would suffer considerable difficulties as she is about to give birth and would be unable to pay her mortgage on the home where they live;
(6)    The cancellation of the visa would adversely affect the applicant’s unborn child;
(7)    The applicant has been established in Australia for almost 10 years;
(8)    The cancellation of the visa will lead to extended separation of the applicant from his wife and child;
(9)    The applicant was convicted of a drink-driving charge in January 2015 but has otherwise not broken any laws in Australia; and
(10) The applicant has contributed to the Australian community by his work and in paying taxes.
The delegate concluded the applicant had provided incorrect information and bogus documents in support of his application. The delegate found that if the applicant had been working as a Project Administrator he would have only been involved in administrative tasks and not involved in daily operations. According to the delegate, there was no information which would indicate that the applicant was ever qualified to undertake the position it was claimed he held in Murphy Pipe and Civil. The work claimed to be undertaken by the applicant, namely machinery operations while completing drainage work, as well as supervising staff, was not consistent with a purely administrative position. The applicant was granted a 457 visa for the nominated occupation of Drainer on 26 June 2008 and, despite Murphy Pipe and Civil claiming that he was promoted to the role of Project Administrator Coordinator within a month of the grant of his 457 visa, the Department were not advised of his change of occupation leading to questions as to the credibility of this claim. The delegate therefore found that the ground for cancellation had been established.
After taking into consideration the submissions why the visa should not be cancelled, the delegate concluded the visa should be cancelled. The delegate found that the correct information was that the applicant was employed as a plant operator/drainer, the decision to grant the visa was based on the incorrect information that he was a Project Administrator and the applicant had continued to maintain this. These matters weighed in favour of cancellation. On the other hand, the present circumstances of the applicant, the fact that nearly five years had elapsed since the non-compliance had occurred and that the applicant had made a contribution to the community through the operation of his business since 2015,were said to be given ‘some’ weight against cancellation. The delegate also noted that if the applicant’s visa was cancelled he would have limited options to apply for further visas to in Australia but found that the Convention on the Rights of the Child did not apply to an unborn child and this issue was therefore not a relevant consideration.
The delegate concluded as follows:
52. I find that the visa holder has provided incorrect information and a bogus document in his application for an Employer Nomination Scheme visa. The Employer Nomination Scheme visa was granted based on this incorrect information and bogus document.
53. I acknowledge that the visa holder has registered his own business and that he has established a life in Australia, I have given this some weight in making my decision.
54. After considering the contrary information, the visa holder's response to the NOICC, the prescribed circumstances as set out in regulation 2.41 and the above noted information, I find that the reasons to cancel the visa outweigh the reasons not to cancel.
55. In assessing whether to cancel the visa holder's visa, I have considered the nature of the non-compliance and the fact that by providing the correct information in his Employer Nomination Scheme visa application and stating that he was employed in the nominated occupation of Project Administrator Coordinator for the duration of his 457 visa, the visa holder was able to meet the criteria for the grant of the Employer Nomination Scheme visa when he would not otherwise be entitled to that visa.
For the reasons that follow, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In essence, we accept that the applicant provided incorrect information and a bogus document through his former employer but we find this was unintentional and that the discretionary factors we are required to consider weigh in his favour. While we have formed a different view about the weighing of the factors, it is relevant to note we have had regard to material that was not before the delegate.

LEGISLATIVE FRAMEWORK AND ISSUES FOR DETERMINATION

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. 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.
Section 109(1)(c) provides that before a visa can be cancelled the Minister must have regard to “any prescribed circumstances”. The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations) as follows:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
We ‘stand in the shoes’ of the decision-maker, in this case, a delegate of the Minister, and we are obliged to apply the same law. We are therefore bound to have regard to the prescribed circumstances set out in r 2.41 in deciding whether to exercise the discretion to cancel the applicant’s visa.
While the factors specified in r.2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248.
We may also have regard to lawful government policy. The relevant policy is set out in the department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’. This policy requires delegates to also have regard to matters such as, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.
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.
The issues before the Tribunal are therefore 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.

INFORMATION PROVIDED TO THE TRIBUNAL AND THE TRIBUNAL HEARING

The applicant provided various documents in support of his application. This included statements by himself and his partner, details of their financial affairs, confirmation of the birth of their child and other information in respect of reasons not to cancel the visa.
The applicant appeared before the Tribunal on 23 June 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.
The applicant gave evidence as to the nature of the work he was involved with whilst employed by Murphy Pipe and Civil. He said that this was primarily working as a plant operator laying pipeline and also as a loader. He said that he undertook various responsibilities within the crew with which he was working, however, he always had a supervisor who was responsible for the crew he worked with who would not be involved in the manual work.
The applicant indicated that on many occasions he undertook responsibility beyond his role, however, he was never paid the leading hand allowance. He did much of this work himself as he “wanted to get things done” and but he did not have the official responsibility for them. He provided reports to his supervisor but was not responsible for timesheets, working with a project manager (which was the responsibility of his supervisor), overseeing work of any other contractors apart from his own crew, collecting and analysing data associated with the project or other work associated with a Project Administrator. When the description of ‘Project Administrator’ as set out in ANZSCO 511112 was discussed with him during the hearing, the applicant acknowledged that his work was more appropriately described as a ‘Plant Operator’. He said that he was not entirely sure what a ‘Project Administrator’ was and had not been shown ANZSCO 511112 until recently.
The applicant described what he said was the chaotic administration that was present at Murphy Pipe and Civil. He said the documentation for his application was provided by Murphy Pipe and Civil and their agents who had advised him that they would lodge the application for him. He did not complete the application. This application was completed on his behalf by the migration agent but was signed by him. He said that he “probably did not read the application” but in any event did not know what a Project Administrator was at that time. He accepted the advice he received from Murphy Pipe and Civil and the migration agent that this was the position he had been working in. He said that he had simply accepted the advice of Murphy Pipe and Civil and the agent without obtaining any further information as to the definition of the position because he trusted them. The applicant acknowledged that, based on his current understanding, he did not work as a Project or Program Administrator and that the information that was contained in the letter from Murphy Pipe and Civil in support of the application was not correct.
The applicant provided details of his current circumstances in Australia. The applicant provided consistent with information to that provided in his statutory declaration, and that of his partner, of his current circumstances.
The applicant’s partner, Jessica Allison, gave evidence in support of the application setting out their current circumstances and the difficulties she would face if the visa were cancelled. She said that all her family support is in Australia and it would cause her and her children great distress if the applicant’s visa were cancelled and she were forced to leave Australia to be with him.

CONSIDERATION OF CLAIMS AND EVIDENCE

As already noted, the critical issues that require determination are, first, whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and, secondly, if so, whether the visa should be cancelled.

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

The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 in the following respects:

(1) When the applicant claimed that he was employed as a “Project Administrator coordinator on-site drainage works” for Murphy Pipe and Civil from March 2008 to the date of the application he was providing an incorrect answer; and

(2) The letter provided from Murphy Pipe and Civil claiming that the applicant was promoted to the role of on-site Project Administrator coordinator was a bogus document because it contained a false or misleading statement.

The Department based their decision on information obtained when conducting an audit on Murphy Pipe and Civil. The applicant’s evidence given to the Tribunal at the hearing confirmed that he was not employed by Murphy Pipe and Civil as a program or Project Administrator. The applicant’s primary role was that of a plant operator/drainer. The applicant acknowledged that throughout almost all the time that he was employed at Murphy Pipe and Civil he was operating under the supervision of another worker who was responsible for the on-site administration of his crew. Although the applicant did undertake some tasks which may be considered associated to that of a program or Project Administrator, these were only secondary to his primary role as a plant operator and drainer.
The applicant did not receive any allowance from Murphy Pipe and Civil as a leading hand or any payment for supervising crew or other workers or for undertaking any role which could be considered that of a program or Project Administrator. The work agreements through which the applicant was employed by Murphy Pipe and Civil was always as a Plant Operator/Drainer.

The applicant acknowledged that the letter provided by Murphy Pipe and Civil, which was attached to his application, did not provide an accurate description of his main tasks and duties over the period he was employed by them. He did not recall having read this document when it was included with his application.
One of the reasons the delegate found that the applicant had provided incorrect information and bogus documents was because the applicant was doing manual work on site and was not undertaking “purely administrative activities”. We do not accept that this is what the description of a Project or Program Administrator under ANZCO 511112 requires. Nor do we accept that the ANZCO description was incorporated by reference to the application or that it represented an exhaustive statement of the applicant’s role. The application referred to the role of “Project Administrator” but it was clear that this role was “on-site”. The tasks set out in the letter from Murphy Pipe and Civil detailed a number of on-site manual activities. Relevantly, those duties were stated to include liaising with Structural/Civil engineers and/or site managers, addressing and resolving complaints, completing documentation and written reports and having responsibility for security, on-site safety and co-ordinating excavations on site. Based on the evidence, including the evidence of the applicant, it is clear that he did not undertake any of these duties in the relevant period. It is for this reason, we find that information included in the application was incorrect and that the letter from Murphy Pipe and Civil is a bogus document because it obtained false or misleading statements.
The Tribunal therefore finds that there was non-compliance with s.101 and s.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).
We consider each of the prescribed circumstances, having regard to the applicant’s response and his evidence at the hearing, as follows.

The correct information

The correct information is that the applicant was working as a plant operator/drainer. Although the applicant, following the advice of his agent, initially denied that he was not working as a Project or Program Administrator, at the hearing the applicant acknowledged that this was his primary role and that he undertook additional responsibilities due to his own enthusiasm, not because he was employed in that role. The significant difference between the correct and incorrect information weighs in favour of cancellation.

The content of the document

The letter provided from the applicant’s former employer claimed that he had been employed, under a subclass 457 visa, as a drainer but was given a promotion to on-site Project Administrator Coordinator within the first month. The applicant acknowledged that this information is incorrect and that he was never employed in the position stated in the letter from Murphy Pipe and Civil. Murphy Pipe and Civil would have been aware that the applicant was not employed in the position they claimed he was and the information provided by Murphy Pipe and Civil in that letter appears to have been deliberately false and misleading. While there is no evidence that the applicant was instrumental in this deception or that he was cognisant of this, this weighs in favour of cancellation.

The decision to grant the visa based on the information

The decision to grant the applicant the subclass 856 visa was based on the information provided by him in his application and the letter provided from Murphy Pipe and Civil that he was working as a Project Administrator coordinator. Had the correct information been provided he would not have been granted the visa. This also weighs in favour of cancellation.

The circumstances of the non-compliance

In the sponsorship bar case referred to above, the delegate concluded that Murphy Pipe and Civil provided false information in respect of a number of applications for permanent visas for employees. As already noted, the delegate’s decision, in part, was upheld by the Tribunal on review and a temporary suspension of their capacity to sponsor applicants was ordered.
The Tribunal accepts that when making the application the applicant was following the advice of Murphy Pipe and Civil and the migration agent who was acting for both the applicant and Murphy Pipe and Civil in respect of the application. At the hearing, the applicant acknowledged that he did not look closely at the documents that had been prepared on his behalf and was simply following the advice of his agent and his employer, Murphy Pipe and Civil. He said he trusted the company and his migration agent.
The applicant acknowledged that his primary occupation was as a Plant Operator/Drainer and that any activity that he engaged in during his employment with Murphy Pipe and Civil which could be described as part of the work of a Project or Program Administrator was secondary to his primary role. He agreed that he was not employed by Murphy Pipe and Civil as a Project or Program Administrator. He claimed that at the time he lodged the application he believed the application was legitimate, although he acknowledges he was careless. We accept this evidence.
Each individual is responsible for the information they provide to the Department in respect of any application filed by them. It is their responsibility to ensure that all information contained in any application or other correspondence provided to the Department is true and correct. The fact that somebody may not have read the contents of an application and simply relied on the advice of their employer and migration agent before they signed a declaration that all the information is complete, correct and up-to-date in every detail does not absolve them from the consequences of providing false information. The applicant should have read the application carefully and if he did not know what a Project or Program Administrator was he should have made appropriate enquiries. If he read the letter attached to the application from Murphy Pipe and Civil he would have realised that he did not perform all of the duties listed. This is not a case where the non-compliance was inadvertent or innocent.
The Tribunal does, however, find that the circumstances where the applicant followed the advice of his employer and more particularly his migration agent and accepted their advice mitigates, to some extent, the fact that false information and a bogus document have been provided. While we accept that the applicant was careless rather than duplicitous, this nonetheless is a factor that weighs in favour of cancellation.

Present circumstances

The applicant has been in a de facto relationship with Jessica Allison, who is an Australian citizen, since 2012. They are engaged to be married. They already have one child who is one year old and are expecting their second child soon. It is in the best interests of his children that the applicant be with them at this time of their lives. Ms Allison’s family all reside in Australia and it would be extremely difficult for her to leave Australia and her family if she were required to travel to Ireland to remain with the applicant. She is financially dependent upon the applicant for her financial support as is their child. As they are about to have their second child, this child would also be financially dependent upon the applicant and would prevent Ms Allison re-entering the workforce while she is responsible for the care of the child. The applicant and Ms Allison have purchased a home together which is subject to a mortgage.
The fact that the applicant is in a long-term relationship with an Australian citizen, that they have a child together and will soon have a second child must be given significant weight when considering whether the applicant’s visa should be cancelled.
The applicant has established his own business in Australia and has borrowed extensively to be able to establish this business. The business, appears to be successful and we accept that the applicant has contributed to the Australian economy through this business by employing contractors in the running of the business.
The financial investment the applicant has made in Australia by developing his business must again be given significant weight when considering whether the applicant’s visa should be cancelled
As the applicant is in a de facto relationship with an Australian citizen and they have children together the applicant may be in a position to file an onshore subclass 820/801 Partner visa application. The long-term nature of the relationship and the fact that the parties have children together, would be considered a compelling reason for not applying the Schedule 3 criteria[1] and allowing the consideration of the application onshore. If the applicant filed the application, however, this would impose on him and his family not only a significant financial cost but also a degree of uncertainty and delay. Depending on the nature of any Bridging visa that he may be granted this may also have a significant impact on the continuation of the business the applicant has established in Australia. While the fact that the applicant may be in a position to file an application in Australia to gain permanent residence in Australia ameliorates, to some extent, the impact on him, his family and his work the effect of any cancellation of his subclass 856 visa, the Tribunal takes into account the negative effect that having to go through such a process would have on the applicant and his family.
[1] Schedule 3 provides that if a non-citizen does not hold a substantive visa, they cannot apply for certain visas onshore, including partner visas, unless they do so within a certain period or unless there are compelling reasons why they should be entitled to apply
The alternative to filing an onshore Partner visa application would be that the applicant would be required to go offshore to file an offshore subclass 309/100 Partner visa application. As set out above, if the applicant were required to leave Australia this would have significant adverse effects on himself, his family and his work.
These matters weigh against cancellation.

Subsequent behaviour of the applicant to the cancellation notice

When the notice of intention of cancellation was sent by the Department the applicant consulted the agents who were acting for Murphy Pipe and Civil. They responded by denying any non-compliance. The applicant said that he followed the advice of Murphy Pipe and Civil and their mutual agent in responding to the notice and his understanding what a Project or Program Administrator was. The appropriateness of an agent acting for both Murphy Pipe and Civil, who had an interest in denying any non-compliance so that they could continue to sponsor applicants, and the applicant whose information conflicted with Murphy Pipe and Civil is questionable.
At the hearing, the applicant was represented by a different agent. He made a full and frank admission that the role he had undertaken whilst employed by Murphy Pipe and Civil was not that of a Project Administrator once he was advised about nature and scope of such a role. He admitted that he had not carefully considered all the information which had been provided in support of his application and had merely followed the advice of Murphy Pipe and Civil and his agent when filing the application.
The Tribunal gives the applicant credit for making such an admission to the Tribunal. As stated above, however, it is the responsibility of each individual to ensure that the information provided to the Department is complete and correct and limited weight should be placed on his later admission when considering whether the applicant’s visa should be cancelled.

Other instances of non-compliance

There is no information before the Tribunal that the applicant has been non-compliant with any other visa held by the applicant or any other issues of interest as to the applicant’s visa history.

Time since the non-compliance

The applicant lodged his application for the Employer Nomination Scheme visa on 19 August 2011. The notice of intention to consider cancellation was sent to the applicant on 19 February 2016, almost five years after the non-compliance. It is now six years since the non-compliance occurred.
The applicant has become fully integrated within the Australian community, having started a de facto relationship with an Australian citizen and having a child with her, with a second child due.
Some weight must be placed on the length of time that the applicant has remained living in Australia since the application was made and the grant of his visa.

Breaches of the law

The only information before the Tribunal of any breaches of the law since the non-compliance has been a drink-driving conviction in January 2015. The applicant had his driver’s license suspended and was required to pay a fine.
The Tribunal accepts the applicant’s claim that having been convicted of drink-driving offence he has been taught a salutary lesson. The danger he places himself, his family and the Australian community in by drink-driving is something that should not be tolerated. The fact that he had his license suspended for a 10 month period would have adversely affected the operations of his business. The Tribunal accepts that it is unlikely that he will repeat this behaviour.
While the applicant’s criminal history is not unblemished, his offending is low level and appears to have been an isolated incident. On balance this weighs in favour of cancellation but not strongly so.

Contributions to the community

The applicant’s business has been operating successfully within Australia and he has been paying taxes based on the income he has been able to achieve in the business. He has also been contributing to a number of different charities including Child Fund Australia and Surf Life Saving.
The contributions the applicant has made to the Australian community must be given weight when considering whether the applicant’s visa should be cancelled.

Other relevant matters – PAM 3 guidance

At the time of the application for the subclass 856, the applicant was in a relationship with Donna Shannon who was granted a visa is a member of the family unit of the applicant. That relationship ended soon after the visas were granted. No information has been provided as to Ms Shannon’s current circumstances or how the cancellation of the applicant’s visa would affect her situation. That she would also face a possible cancellation of her visa must, however, be given some weight when considering whether the applicant’s visa should be cancelled.

Overall assessment

The Tribunal has considered the circumstances of the applicant when considering whether the applicant’s visa should be cancelled. The correct information, the content of the information and the fact the visa was granted based on the incorrect information all weigh strongly in favour of cancellation. The circumstances of the non-compliance also weigh in favour of cancellation, although it is relevant that the applicant was careless rather than duplicitous. The applicant’s subsequent behaviour can be explained by the advice he received from his former agent and the fact the applicant has been full and frank in making admissions counts in his favour.
The significant integration he has made into the Australian community over the past 10 years and, in particular, the fact that he is in a long-standing relationship with an Australian citizen and that they have a child together and soon to have a second child provides the most compelling reason not to cancel the applicant’s visa. The time that has elapsed, his contributions to the community and the impact on his partner and children all weigh against cancellation.
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. However, in considering all the matters discussed above, the Tribunal concludes that the circumstances that weigh against cancellation outweigh those matters that weigh in favour, leading the Tribunal to exercise its discretion not to cancel the applicant’s visa and having regard to all the relevant circumstances, 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 856 (Employer Nomination Scheme) visa.

Jan Redfern
Deputy President

Hugh Sanderson
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)    purports to have been, but was not, issued in respect of the person; or
(b)    is counterfeit or has been altered by a person who does not have authority to do so; or
(c)    was obtained because of a false or misleading statement, whether or not made knowingly.
Interpretation

In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
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.
Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)    giving particulars of the possible non‑compliance; and
(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)    stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)    setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)     requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)    otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)    visas of a stated class; or
(b)    visa holders in stated circumstances; or
(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2017] AATA 2111

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction