Morshed (Migration)

[2019] AATA 6469

Morshed (Migration) [2019] AATA 6469 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Monjur Morshed

CASE NUMBER:  1918087

DIBP REFERENCE(S):  BCC2019/619540

MEMBER:Katie Malyon

DATE:19 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 482 Temporary Skill Shortage visa.

Statement made on 19 November 2019 at 4:03 pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant provided incorrect answers in application form – sponsor ceased operating – applicant was not working with the company at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 99, 101, 107, 109, 359, 360, 363
Migration Regulations 1994, Schedule 2, r 2.41, cl 482.221

CASES
Hasran v MIAC [2010] FCAFC 40
MIAC v Khadgi (2010) 190 FCR 248

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 Subclass 482 Temporary Skill Shortage visa of review applicant, Bangladesh national Mr Mohammad Monjur Morshed, under s.109(1) of the Migration Act 1958 (the Act).

2. Based on information in the Department’s file, the delegate cancelled the visa under s.109 of the Act because that Mr Morshed did not comply with s.101(b) of the Act as he provided incorrect answers in his electronic application form for his Subclass 482 visa.

   Background

3. Mr Morshed applied for his Subclass 482 visa on 3 August 2018.  The Department granted the visa on 7 September 2018 for a period of 2 years on the basis of a nomination made by K-Talk Communications Pty Ltd ABN 28 610 259 124 (the Company) and information in Mr Morshed’s visa application.  The Company’s nomination which was approved on 9 August 2018.

4. Information in the Department’s file indicates that, on 1 February 2019, the Department received information that Mr Morshed never worked for the Company.  The Company purported to operate from an address at 104 Invermay Road, Invermay in Tasmania.  Investigations conducted by the Department as well as enquiries made into the tenancy of the property at 104 Invermay Road, Invermay revealed the Company does not - and never has - operated from that address.  The delegate also established that records publicly available and published by the Australian Securities & Investment Commission (ASIC) confirm the Company was deregistered on 17 June 2018, that is, 2 months prior to the date of lodgement of the Company’s associated nomination and Mr Morshed’s visa application on 3 August 2018. 

5. On 28 May 2019, Mr Morshed was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with s.101 of the Act. This requires that information in the visa application must be correct. A request for further time to respond to the NOICC was made on 7 June 2019: however, the Department advised Mr Morshed’s representative that, consistent with immigration law, further time to respond could not be provided. The Department did not receive a response to its NOICC.

6. The delegate found Mr Morshed did not comply with s.101(b) of the Act as he provided incorrect answers in his Subclass 482 application in relation to his claimed employment situation at the time of lodgement of his visa application. By way of summary, Mr Morshed provided answers in response to questions in the visa application form that he was currently working full-time with the Company as a Web Developer and that he had worked with the Company since 19 March 2018. Mr Morshed seeks a review of the delegate’s decision to cancel his visa.

   Tribunal’s s.359A letter

7. On 24 October 2019, the Tribunal wrote to Mr Morshed pursuant to s.359A of the Act inviting him to comment on, or respond to, information which would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review to cancel his Subclass 482 visa.

8. The Tribunal informed Mr Morshed that its review of the Department’s file provides information that he applied for a Subclass 482 visa on 3 August 2018 on the basis of sponsorship by the Company and, in his electronic visa application, he provided the following information to the Department when completing the visa application form:

   Is this your current situation? Yes
   Position: Web Developer
   Position type: Full-time
   Employer name: K-Talk Communications Pty Ltd
   Country: AUSTRALIA
   Date from: 19 March 2018
   Description of duties: Web Developer
   Is this employment related to the nominated position? Yes

   In response to the request ‘Give details to support the applicant’s ability to meet the criteria and insure supporting documentation are attached’, Mr Morshed responded:

   I have completed my Bachelor of Computer science from India, after completion of my studies return to Bangladesh to pursue my career.  I have got job office from a few companies and Bangladesh and I worked in Bangladesh for a period of 11 years and I am here in Australia working from last 4 years and with this company from 19/03/2018.

9. The Tribunal observed that he was granted a Subclass 482 visa on 7 September 2018 on the basis of sponsorship by the Company.  However, on 17 June 2018 (that is, 2 months before lodgement of the Company’s nomination application and Mr Morshed’s visa application) the Australian Securities & Investment Commission (ASIC) deregistered the Company as confirmed by the ASIC extract attached to the Tribunal’ s.359A letter. As such, the Company ceased operating prior to 17 June 2018.

10. In addition, the Tribunal noted that, relevantly, s.99 of the Act provides that 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 in relation to the non-citizen’s application for a visa is taken for the purposes of s.101(b) of the Act 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.

11. The Tribunal noted the information as set out above at paras [8] - [9] is relevant to the review because it may find that, inconsistent with a visa applicant’s obligation under s.101(b) of the Act to fill in or complete a visa application in such a way that no incorrect answers are given or provided, Mr Morshed completed his visa application form in a way that incorrect answers were given. It stated that, in these circumstances, it may find that he did not comply with s.101 of the Act and that there are grounds for cancelling his visa under s.109 of the Act.

12. In its s.359A letter, the Tribunal requested Mr Morshed provide any comments or response to the information in the Tribunal’s letter on or before 7 November 2019. On 6 November 2019, Mr Morshed’s representative wrote to the Tribunal noting the firm had received instructions to seek more time to prepare documents in response to the Tribunal’s s.359 letter. The Tribunal granted an extension of time until 11 November 2019. In forwarding it letter to Mr Morshed’s representative, the Tribunal received an automatic response indicating that the representative was out of the office from 6 November to 13 November 2019.

13. In the circumstances, on 7 November 2019 the Tribunal acknowledged receipt of the automatic response advising of the representative’s absence from the office until 13 November 2019 and granted a further extension of time to respond to the Tribunal’s s.359A letter until 18 November 2019.

14. Mr Morshed has not commented on, or responded to, the Tribunal’s letter within the prescribed period. As he has not provided any response to the Tribunal’s s.359A letter, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Morshed is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to make a decision without taking any further steps to obtain comments or response to its s.359A letter.

15. For the following reasons, the Tribunal has concluded that the decision to cancel Mr Morshed’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue

16. The issue in the present case is whether the ground for cancellation of Mr Morshed’s Subclass 482 visa is made out and, if so, whether the visa should be cancelled.

    Relevant law

17. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.101, s.102, s.103, s.104, s.105 or s.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.

18. 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 and providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107 of the Act, the power to cancel the visa does not arise. Extracts of provisions from the Act relevant to this case are set out in the Attachment to this decision.

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

19. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1) of the Act. It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107 of the Act. Therefore, if a notice is to be given under s.107 of the Act, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

20. Having reviewed the Department’s file, the Tribunal is satisfied that the s.107 notice issued by the delegate contains sufficient particulars to enable Mr Morshed to identify and address the issues and, further, that the delegate had reached the necessary state of mind to engage s.107 of the Act. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the NOICC issued under s.107 of the Act complied with the statutory requirements.

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

21. The issue before the Tribunal is whether there was non-compliance in the way described in NOICC issued under s.107 of the Act, being the manner particularised in the notice and, if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act.

22. As set out in the Tribunal’s s.359A letter referred to above at para [8], the NOICC contains information that Mr Morshed applied for a Subclass 482 visa on 3 August 2018 on the basis of sponsorship by the Company. As part of that application, he provided information in his application that he is currently working full-time in the position of Web Developer with the Company and has been with the Company since 19 March 2018. Further, his employment is related to the nominated position of Web Developer. It was on the basis of this information that Mr Morshed was granted his Subclass 482 visa on 7 September 2018. However, on 17 June 2018 (that is, 2 months before lodgement of the Company’s nomination in respect of Mr Morshed’s Subclass 482 visa) ASIC had deregistered the Company and, as such, the Company ceased operating prior to 17 June 2018. 

23. The Department’s file confirms that Mr Morshed did not respond to the Department’s NOICC issued pursuant to s.107 of the Act.

24. Having regard to information in the Department’s file and publicly available ASIC records, the Tribunal finds that the Company ceased operating before 17 June 2018.  The Tribunal finds that when he lodged his Subclass 482 visa application on 3 August 2019, Mr Morshed was not then working with the Company and nor had he been working with the Company since 19 March 2018 to that date. 

25. The Tribunal finds that Mr Morshed did not comply with s.101(b) of the Act because, when he lodged his Subclass 482 visa application on 3 August 2018, he provided incorrect information regarding his employment with the Company which had been deregistered since 17 June 2018. As such, the Tribunal finds that there was non-compliance with s.101 of the Act by Mr Morshed in the way described in the s.107 notice.

    Should the visa be cancelled?

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

27. 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) of the Act. The prescribed circumstances are set out in r.2.41 of the Regulations 1994 (the Regulations).  The Tribunal has considered these below in paras [29] - [38]. 

28. The correct information is that Mr Morshed was not working with the Company on 3 August 2018 as stated in his Subclass 482 visa application.  As confirmed by ASIC records, the Company had ceased operating by then.

    The content of the genuine document (if any)

29. As this decision relates to information rather than a document provided by Mr Morshed, this circumstance is not relevant.

    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

30. To be granted a Subclass 482 visa, Mr Morshed was required to provide information in relation to his employment to enable the delegate to assess his eligibility for the visa. In this regard, cl.482.221 of Schedule 2 to the Regulations requires the applicant for a Subclass 482 visa to satisfy the delegate that they have worked in the nominated occupation or a related field for at least 2 years. The Tribunal finds that the assessment of Mr Morshed’s claimed previous employment with the Company was central to the assessment of his eligibility to be granted a Subclass 482 visa. Clearly, the decision to grant him the visa was based on incorrect information provided by him.

31. The Tribunal finds that the decision to grant Mr Morshed a Subclass 482 visa was based, wholly or partly, on false information provided by him.  This weighs strongly in favour of visa cancellation.

    The circumstances in which the non-compliance occurred

32. As Mr Morshed did not provide a response to the Department’s NOICC and, further, he did not respond to the Tribunal’s s.359A letter, the Tribunal has no information in relation to the circumstances in which his non-compliance with s.101 of the Act occurred.

    The present circumstances of the visa holder

33. Since Mr Morshed has not provided a response to the Tribunal’s s.359A letter, it has no information in relation to his present circumstances.

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

34. Nothing adverse is known about Mr Morshed’s behaviour concerning his obligations under the above provisions of the Act.

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

35. There are no other instances of non-compliance known to the Tribunal.

    The time that has elapsed since the non-compliance

36. Mr Morshed made his application for the visa on 3 August 2018.  Since that time, 15 months have passed.  

    Any breaches of the law since the non-compliance and the seriousness of those breaches

37. There are no breaches of the law known to the Tribunal.

    Any contribution made by the holder to the community

38. As Mr Morshed has not provided a response to the Tribunal s.359A letter, there is no information before the Tribunal about his contribution, if any, to the community.

39. While the factors set out in r.2.41 of the Regulations 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. The Tribunal may also have regard to government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences

40. If a person continues to reside in Australia following cancellation of their visa, they would become an unlawful non-citizen and may be detained unless granted another visa. 

41. The Tribunal acknowledges that, unless Mr Morshed is granted another visa, he may become an unlawful non-citizen and subject to detention as well as possible removal from Australia.  There is no suggestion that Mr Morshed would be detained indefinitely.  Further, there may also be restrictions on his future travel and future visa applications as a consequence of the cancellation.

42. There are no provisions in the Act which prevent Mr Morshed from making a valid visa application without the Minister's intervention although he will have limited opportunities when making future visa applications if he remains in Australia.

43. While these mandatory legal consequences may cause inconvenience to Mr Morshed if his Subclass 482 visa is cancelled, he has benefited from providing incorrect information in his visa application and, moreover, it is very likely that he would not have been granted the visa if he had provided correct or accurate information about meeting the work experience requirement in cl.482.221 of Schedule 2 to the Regulations.

    Whether there would be consequential cancellations under s.140

44. There are no persons whose visas would be subject to cancellation under s.140 of the Act as Mr Morshed did not include any members of his family in his Subclass 482 visa application.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

45. There is no evidence before the Tribunal to indicate that any international obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family member

46. There is no evidence before the Tribunal that Mr Morshed would suffer any degree of hardship arising from cancellation of his visa.  The Tribunal accepts that he is a Bangladeshi national who has lived in Australia since September 2014 and that there he would experience some re-adjustment issues upon his return to Bangladesh. 

47. The Tribunal has considered the totality of Mr Morshed’s circumstances. It has found that he did not comply with s.101 of the Act because he provided false information in his Subclass 482 visa application regarding his employment with the Company. The Tribunal is of the view that the breach is significant because evidence of Mr Morshed’s employment experience was essential the assessment of his eligibility for the visa.

48. In addition, the Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations and there is no evidence that the cancellation would cause any hardship to Mr Morshed. While some time has passed since Mr Morshed’s non-compliance, the Tribunal does not consider the time to be significant, especially having regard to the fact that he has made no effort to respond to the Department’s NOICC or the Tribunal’s s.359A letter. There are no other persons, such as family members, who would be affected by the cancellation. The Tribunal acknowledges that there are no other instances of non-compliance or breaches of the law known to the Tribunal and there is no information about Mr Morshed’s contribution to the community.

1. Having regard to all of Mr Morshed’s circumstances, the Tribunal has formed the view that the nature of the breach and the circumstances in which the non-compliance occurred outweigh other considerations.

   Conclusion

2. The Tribunal has decided that there was non-compliance by Mr Morshed 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 be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 482 Temporary Skill Shortage visa.

   Katie Malyon

   
   Member

   ATTACHMENT – Migration Act 1958 (extracts)
   
   

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)    purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

   …

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   …

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)    giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)    stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)    requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)    visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   …

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)    having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

   oOOo