Oad (Migration)

Oad (Migration) [2021] AATA 1404 (27 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Reeta Oad
Mr Naresh Kumar Oad
Ms Elayna Oad
CASE NUMBER:  1935318
HOME AFFAIRS REFERENCE(S):          BCC2017/3252360
MEMBER:John Cipolla
DATE:27 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 27 January 2021 at 9.47am

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – ground for cancellation – incorrect information in previous visa application – intention to take up nominated position for a minimum of two years – existence and operation of the nominating business – credible witness – applicant commenced employment – underpayment – made redundant – false promises by the business owner – bogus document – lease agreements – Departmental investigatory procedures – training receipts – employment contract – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that Departmental investigations and enquiries indicated that the applicant had provided incorrect information in her visa application and had also submitted bogus documents. The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
Recourse to the delegates decision record indicates that the findings were based on the following information. In her application for the visa dated 1 February 2016, the applicant in the section of the application seeking details of the associated nomination provided the transaction reference number pertaining to the approved nomination by NDOT Technologies Pty Ltd. In response to the question whether the applicant would agree to take up the position for at least 2 years the applicant answered ‘yes’.
The delegate noted that a Departmental investigation called into question the provenance of the nominating business. This was based on integrity checks of the business conducted in 2017 where Departmental officers attended the claimed addresses for the business and spoke to fellow tenants of the business who advised that they had not heard of NDOT Technologies.
Further to this the lessor of the nominating business was contacted and the details of the lease agreements that they had with NDOT Technologies did not correspond to the lease agreement that the nominating business submitted to the Department. The Department noted the following:
“On 28 August 2017, the Department contacted iOctane Pty Ltd to verify the lease agreement provided by the visa holder’s sponsor in support of her ENS nomination. On the same date, iOctane Pty Ltd advised they provided serviced office facilities for NDOT Technologies Pty Ltd, formerly Flat World Solutions, for a brief period of time and provided the Department with (emphasis added in bold):
A copy of a lease agreement between iOctane and Flat World Solutions
dated 16 January 2012, leasing Flat World Solutions ‘Open plan desk, Level 1, 165 Cremorne Street, Richmond, VIC 3121 RICHMOND’ on a month-by-month basis for $400 per month, commencing 16 January 2012; and
A copy of a lease agreement between iOctane and NDOT Technologies Pty Ltd
dated 16 April 2012, leasing NDOT Technologies Pty Ltd ‘Suite 6 / Level 1, 165 Cremorne Street, RICHMOND 3121’ on a month-by-month basis for $1,350 per month, commencing 16 April 2012.
Neither of these lease agreements corresponds with the one provided to the Department by the visa holder’s sponsor who submitted:
A copy of a lease agreement between iOctane and NDOT Technologies
dated 24 April 2012 leasing NDOT Technologies
‘Level 1, 165 Cremorne Street, Richmond VIC 3121’
on a month-by-month basis for $2,200 per month, commencing 16 January 2012.
It appears that the premises leased, the dates and the fees do not correspond with the lease
agreement provided by the visa holder’s sponsor in support of her nomination application”
In addition to this training invoices that had been provided by the nominating business in support of the training undertaken by the business were verified with the training provider and this called into question the provenance of these documents In this respect the Department noted that:
“Also in support of the visa holder’s nomination, her sponsor provided two training invoice receipts from Australian Education Academy Pty Ltd. The invoices from
Australian Education Academy Pty Ltd were dated 24 October 2014 for a six-hour staff training session conducted on 21 October 2014, and 17 March 2015 for staff training sessions conducted for four days from 3 March 2015 to 6 March 2015 at five-hours of training each day.
…On 25 August 2017, the Department contacted Australian Education Academy Pty Ltd to verify the training invoices provided by the visa holder’s sponsor in support of the nomination linked to her ENS application.
On 29 August 2017 Australian Education Academy Pty Ltd advised the Department that while the template of the invoices appeared to be that of the company, the documents had not been issued by Australian Education Academy Pty Ltd.”
The Department concluded that “given the information outlined above, it appears that the visa holder provided incorrect answers and submitted bogus documents in her ENS application.”
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal on 19 January 2021 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent who attended the review hearing with the applicant.
The issue before the Tribunal is whether there was non-compliance in the way described in the section 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 the provision of incorrect information by the applicant in her Subclass 186 visa application and s.103 the provision of a bogus document in her Subclass 186 visa application.
On 28 September 2020 the Tribunal wrote to the applicant under s.359A of the Migration Act in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to
comment on or respond to certain information which we consider would, subject to
your comments or response, be the reason, or a part of the reason, for affirming the
decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
Recourse to the Departmental decision record indicates the following. An ASIC
Historical Extract obtained by the Department on 8 August 2017 confirms the
nominating business (NDOT Technologies Pty Ltd) place of business as being located
at 1/165 Cremorne Street Richmond from April 2012 to May 2015. From May 2016 the
business was listed as being located at 1/501 Church Street Richmond, but mail
forwarded to this address from ASIC was returned to sender on 3 May 2017.
Site visits conducted by the Department to 1/501 Church Street Richmond and 1/165
Cremorne Street Richmond indicated, after discussions with a number of long-term
tenants at these addresses, that they had never heard of NDOT Technologies Pty Ltd
the applicant’s nominating business. There was no evidence that confirmed the
existence of this business operating at either of those premises.
Integrity checks undertaken by the Department with training companies, into purported
training paid for by NDOT Technologies Pty Ltd, indicated that the training was never
provided. The respective training invoices were dated 24 October 2014 and 17 March
2015.
On 28 August 2017 integrity checks made with the lessor of the above-mentioned
properties indicted that the lease agreements they had, did not correspond to the lease agreements provided by NDOT Technologies Pty Ltd to the Department.
As a result of these integrity checks the Department concluded that the employment
contract provided was bogus, that the evidence of training was bogus and the
respective lease agreements were bogus.
The grant of the visa to the applicant is predicated on the applicant taking up the
nominated position for 2 years. The Tribunal notes that the applicant’s visa was
granted on 17 October 2016 and the expectation is that the applicant will be provided
with employment by NDOT Technologies Pty Ltd for at least 2 years, on terms that do
not preclude the possibility of extension, with regard to the date of the grant of the visa
the period would indicatively be from 17 October 2016 through to 17 October 2018.
The Tribunal has accessed a recent Historical Extract for NDOT Technologies Pty Ltd
(please find attached) which indicates that this business was de-registered on 17
September 2018.
The evidence before the Tribunal further suggests that the applicant, in the Subclass
186 visa lodged with the Department, did provide incorrect information to the
Department pertaining to the existence and operation of the nominating business
NDOT Technologies Pty Ltd, the location and address of the business, the lease
agreements for the business, and further to this that the applicant was incapable of
taking up the position as it was non-genuine and the business was in fact deregistered
on 17 September 2018.
The evidence before the Tribunal indicates that the applicant appears to have provided
bogus documents to the Department in support of the visa application, namely, lease
agreements for the business NDOT Technologies Pty Ltd, which was not operating out
of the stated addresses for the business, training receipts for the business for training,
which the training companies confirmed with the Department did not take place and an
employment contract for the applicant in a business which was not actively operating.
This information may lead the Tribunal to affirm the decision of the Department on the
following basis. The grant of the applicant’s visa was contingent on the Department
being satisfied that the nominating business, NDOT Technologies Pty Ltd, would be
able to employ the applicant on a full time basis for 2 years, on terms that did not
expressly preclude the possibility of an extension and required that the business be
actively operating a business in Australia. The de-registration of the business on 17
September 2018 indicates that these regulatory requirements were incapable of being
satisfied.
Further to this evidence provided by the applicant in support of the visa application
which has been the subject of integrity checks appears to be both incorrect and bogus
in its content, based on the integrity checks undertaken by the Department and
referred to in detail in the Departmental decision record, a copy of which was attached
to the application for merits review, suggests that the business was not operational
during the period of the applicants purported employment.
You are invited to give comments on or respond to the above information in writing.
The Tribunal received a comprehensive response to the s.359A letter which included a submission from the applicant’s representative, a statement from the applicant and a number of statements from relatives of the applicant that attest to the applicant’s employment at NDOT Technologies Pty Ltd including some who had visited her in the workplace.
The Tribunal has had regard to the submission in response to the s.359A letter and to the applicant’s statement and has referenced both of these below.
The applicants representative provided a submission which asserts that the applicant did in fact commence work with her nominating employer NDOT Technologies and that she did intend to commit to at least two years employment with them, further to this that it was due to a series of circumstances beyond the applicant’s control (being made redundant) that she ceased working with NDOT Technologies. Thus, the applicant did not provide incorrect information with regard to that work commitment. Further to this that the provenance of the documents submitted to the Department by NDOT Technologies, which led to the approval of their nomination application, were documents provided by them and not by the applicant in her visa application and it follows that the applicant did not provide bogus documents in support of her visa application. In addition to this evidence was provided to the delegate that indicated that called into question the adverse findings around the training invoices with the delegate concluding that “ I have therefore not reached the requisite state of satisfaction that the training invoice receipts are bogus documents and I find therefore no non-compliance in relation to these particular documents.”
The response to the Tribunals s.359A letter from the applicant’s representative which is dated 30 October 2020 submitted that:
On 17 October 2016, the Applicant was granted a 186 visa after the Department had approved the nomination in question for NDOT Technologies. Almost three years later on 5 March 2019 the Department sent a notice of intention to consider cancellation (‘NOICC’) to the Applicant and alleged that information provided by the Applicant in relation to her 186 visa application was incorrect under section 101 of the Act, and further that she had provided bogus documentation in support of the application under section 103 of the Act. The Applicant provided a response to the Department on six separate occasions refuting the allegations, however on 11 December 2019 the Department proceeded to cancel the Applicant’s visa.
The Applicant appealed the decision to the Administrative Appeals Tribunal (‘Tribunal’) and is currently awaiting a hearing date. On 28 September 2020, the Tribunal sent the Applicant an ‘invitation to comment on or respond to information’ relating to similar concerns outlined above by the Department.
At the outset we note that in exercising this power, the Tribunal must consider the Applicant’s response to the s.107 notice about the alleged non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). It is important to draw the Tribunal’s attention to PAM – which states that as a matter of policy, delegates should not weigh matters that are against the visa holder. This is because the grounds for cancellation have already been made out. Any information provided by the Applicant should be weighed in their favor.
i. Was there Non-Compliance as Described in the Section 107 Notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the section 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The Applicant maintains the position that she was employed by NDOT Technologies as a Business Analyst and attended her place of employment at 1/165 Cremorne Street, Richmond, Victoria. We refer the Tribunal to the following documentation evidencing this contention:
• ATO Tax Summary where NDOT Technologies is declared as the Applicant’s employer
• Payslips x 2 – NDOT Technologies
• Statutory Declaration from individuals confirming that the Applicant was employed at 165 Cremorne Street, Richmond, Victoria 3121, and some individuals who visited the Applicant at the premises
• Verification Annexure evidencing 165 Cremorne Street, Richmond, Victoria as the Applicant’s primary place of employment.
The Applicant further maintains her position that she did not provide incorrect information or bogus documents to the Department. Accordingly, the Applicant does not concede that there was non-compliance by the Applicant within the provisions under section 101 and 103 of the Act and in the way described in the section 107 notice originally issued by the Department. We refer the Tribunal to the Applicant’s most recent statutory declaration where she provides a detailed summary of her history with NDOT Technologies, how she came about being employed by the business and her subsequent redundancy.
The Applicant maintains that she was employed by NDOT Technologies as a Business Analyst for the period of 1 November 2016 to 31 May 2017, after which she was made redundant through no fault of her own.
a) Requirements for the Grant of a 186 Visa and Two-Year Employment Declaration
We refer the Tribunal to the requirements for the grant of a 186 visa under regulation 186.23 of the Regulations. At the time and grant of the visa application, the Applicant demonstrated that she met the requirements pursuant to regulation regulations 186.231 – 235 of the Regulations. In summary, we submit the Applicant met the policy requirements as follows:
• 186.231 – at the time of the applicant, the Applicant had not turned 45
• 186.232 - at the time of the applicant, the Applicant provided an English language test. Accordingly, the Applicant had competent English.
• 186.233 – at the time of the application, the position to which the visa application related to was a position: o Nominated in an application for approval that identified the Applicant in relation to the position; was made in relation to a visa in a direct entry stream; and met the requirements of sub regulation 5.19(10); and
•in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa
•The person who will employ the applicant is the person who made the nomination.
•The Minister has approved the nomination.
•The nomination has not subsequently been withdrawn.
• Either: there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
• it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
The application for the visa is made not more than 6 months after the Minister approved the nomination.
A basis given by Department for cancelling the Applicant’s visa was that she had violated section 101 (b) of the Act, by providing incorrect answers in her application. However, the Applicant answered all parts of her application truthfully, including her personal information, her work experience and qualifications. We note that in her application form there was no declaration of her position as a Business Analyst, details of her new role with NDOT Technologies and the nominated business’ address in Australia. This information was provided with NDOT Technologies nomination application and the Department’s cancellation referral reports specifically refers to the information being submitted with the ‘ENS nomination application’.
Additionally, it appears that all concerns raised by the Department and Tribunal regarding NDOT Technologies and the genuineness of position fall under regulation 5.19 of the Regulations and relate to the nomination application in question which was approved by the Minister. In our submission, that information does not fall within the ambit of section 99 of the Act and the concerns noted do not form any part of the ground for cancellation for the Applicant’s visa as put forward by the Department in its section 107 letter. The only information that falls within section 99 of the Act is the employment contract, however we submit that this was not relevant to the Applicant’s 186 visa being granted and the document did not seek to satisfy any part of regulations 186.231 – 235 of the Regulations as stated above. Even if the employment contract had not been provided with the application, the Applicant’s 186 visa would still have been approved. Accordingly, it was incorrect for the Department to conclude that visa application would not have been approved on this basis. All that was required for the grant of the 186 visa application was identifying an ‘approved nomination’ which had been satisfied by the Department, and at the time of the 186 visa application, the Department was satisfied as per the information provided on the nomination that the Applicant’s position was genuine.
With respect to the intention of taking up the position for a minimum of two years, we submit that this is not a matter that the Department and Tribunal should assign material weight to in deciding that the Applicant provided incorrect answers on her 186 visa application form. The reason being is that the Applicant has been consistent in stating that at the time the Application was lodged, and further at the time of the grant of the visa, she had the intention to take up the position for a minimum of two years on a permanent full time basis. There is no information or evidence before the Tribunal to suggest the contrary. Whilst we acknowledge that the Applicant has stated that she was only in her role for a period of 6 months after being made redundant, we submit that these are circumstances that were beyond her control and she effectively did not breach any conditions of her visa. Further, there is no mandatory legislative basis under the 186 visa scheme requiring that the Applicant to work in her nominated employment for a period of at least two years. The requirement is for the employer to demonstrate the intention to offer the employment for two years and that the visa applicant intends to remain employed by the sponsor for two years. In the Applicant’s case, this was satisfied at the time of the 186 application and grant of the visa. In light of this, we submit that the Applicant did not provide incorrect information with her 186 visa application.
b) NDOT Technologies Pty Ltd – Department Verification
The Department and Tribunal refer to the deregistration of the businesses occurring in November 2018, which is almost two years after the Applicant was granted her 186 visa and commenced employment. As per the Applicant’s testimony, she was only able to be employed by NDOT Technologies for a period of 6 months, being November 2016 to May 2017, before being made redundant. We note that the evidence before the Tribunal supports the contention that the business was registered during this time of the Applicant’s employment. It is therefore not correct to conclude that ‘…the applicant was incapable of taking up the position as it was non-genuine and the business was in fact de-registered on 17 September 2018’.
Further, there is also evidence before the Tribunal evidencing that the Applicant’s place of employment was 1/165 Cremorne Street, Richmond, Victoria. Therefore, the fact that the business was de-registered in November 2018 does not preclude that the Applicant was employed by the business between November 2016 to May 2017.
We further note that the Applicant has never declared her location of employment to be Suite 6, Level 1, 501 Church Street, Richmond, Victoria, and it is important to note that NDOT Technologies’ registered office changed to this address after the Applicant was made redundant. At no time was the Applicant privy to what address the business may have been registered to on paper – as far as she was aware, her physical place of employment was 1/165 Cremorne Street, Richmond, Victoria 3121 which she attended every day for a period of 6 months. Therefore, it cannot be reasonably expected for her to comment on the information with respect to the inner workings of NDOT Technologies.
We also note that the Applicant has not been made privy to any verification reports undertaken by the Department as noted in the section 107 letter, and has not had access to any of the site visit notes or interview transcripts undertaken by the Department. Further, the Applicant was not approached, questioned or interviewed when the verification was being undertaken and it appears that the Department was already persuaded by the assertions made during their verification with respect to the alleged non-existence of the business. Further, the verification in question was undertaken in 2017 and NDOT Technologies’ standard business sponsorship was cancelled in October 2017, almost one year after the Applicant was granted her 186 visa and commenced employment, and also a significant time after she was made redundant. The Applicant was not issued a NOICC until almost two years later in March 2019. This caused the Applicant significant difficulty in securing any kind of information from her previous employer as evidence of her employment due to her being made redundant and the business no longer operating. Further, due to the significant period of time that has passed, the Applicant has been unable to keep any myki receipts or google maps tracing information as evidence of her commuting to Richmond during her period of employment. We submit that had the Department requested information from the Applicant in 2017, this may have likely placed the Applicant in a better position to obtain the documentation from her previous employer and she should not be penalised for this.
We note that Tribunal must reach its conclusion by conducting its own, independent assessment and determination of the matters necessary to be addressed.
In our submission, the Applicant has been a collateral casualty of the Department’s verification with respect to the NDOT Technologies and the dysfunctionality of the business (discussed below). The Applicant states in her statutory declaration that she was not aware of any financial difficulties that the business was having, and neither as a new employee would she be privy to any of this information. We submit that through this cancellation process, the Applicant has now been made aware of confidential information that does not pertain to her.
c) NDOT Technologies Pty Ltd - Lease Agreement and Training Receipts
The lease agreement and training receipts in question relate to the nomination application specifically and contrary to the Department’s cancellation decision, these documents were not provided with the Applicant’s 186 visa application. The Applicant was never privy to any of these documents. In our submission, the allegations with respect to the lease agreement and training receipts do not fall within the ambit of section 99 of the Act and therefore do not form a basis of the Applicant’s visa cancellation.
We refer the Tribunal to the Department’s cancellation decision where the delegate concluded that in light of the evidence provided by the Applicant, no non-compliance was found to have been made with respect to the training receipts:
The two training invoice receipts provided by the visa holder’s sponsor in support of her nomination linked to her ENS application, indicated that her sponsor had paid for and received staff training from Australian Education Academy Pty Ltd. In her response the visa holder provided email correspondence between a departmental officer and the Academy, dated 21 September 2017 to verify that training for the sponsor was completed at the Academy. I acknowledge the email correspondence provided by the visa holder appears to match departmental records; that this correspondence was not noted in the Notice; and that the document is therefore possibly not a bogus document. I have therefore not reached the requisite state of satisfaction that the training invoice receipts are bogus documents and I find therefore no non-compliance in relation to these particular documents.
We therefore submit that the concern with respect to training receipts is no longer an issue in contention. However, this does raise concerns regarding the Department verification process in general as the Department has previously stated that they undertook verification and found the documents to be counterfeit and the Applicant had provided bogus documents. By virtue of the evidence provided to the Department by the Applicant and the Department’s own conclusions, this information is now incorrect.
Further, we note that the Department has stated in the cancellation decision that:
When departmental officers visited the nominated business address Level 1, 165 Cremorne Street, Richmond, Victoria 3121 on 11 August 2017 departmental officers noted that several businesses shared the office space on level 1 and spoke to the business owner of Personal Financial Advice Pty Ltd who after having worked at the premises for five years, had not heard of the business NDOT Technologies Pty Ltd.
This information formed part of the Department’s conclusion that NDOT Technologies was not located at, nor operating from, the nominated business address during the time the visa holder was employed there. However, our own independent verification of the location of Personal Financial Advice Pty Ltd indicates that the address and location of the business is actually 132 Cremorne Street, Richmond, Victoria 3121 and not 165 Cremorne Street, Richmond, Victoria 3121. We refer the Tribunal to the Evidence of Personal Financial Advice Location documentation submitted with this submission. This further gives rise to serious concerns regarding the credibility of the Department’s verification process. If the Department was incorrect in their verification regarding the training receipts and the information in relation to Personal Financial Advice Pty Ltd, it is possible that the Department could also be incorrect with respect to the verification regarding the location of the business and the allegation that the Applicant did not work for NDOT Technologies. In our submission, this information creates uncertainty in the entire verification process and casts doubt over the accuracy of the Department’s evidence and further demonstrates that the ground for cancellation of the Applicant’s visa was not adequately identified.
d) Applicant’s Employment with NDOT Technologies
The Applicant has submitted a timeline of events, a statement in response to both the Department’s allegations and Tribunal’s request, character reference letters, and payslips that all evidence that the allegation put forward is untrue in totality. In our submission, the overwhelming evidence provided previously to the Department and Tribunal with this submission are a more reliable source of information about the Applicant’s employment at NDOT Technologies in light of the deficiencies noted above in the Department’s verification.
The Applicant has provided a significant number of statutory declarations from family and friends who have provided testimony of their awareness of the Applicant’s employment. Specifically, the Applicant’s husband Mr Naresh Kumar, her brother Mr Percy Oad, her nephew Susheel Kumar Oad and friend Mr Hamid, have confirmed that they all visited the Applicant at her employment premises.
The Applicant has also managed to obtain a statutory declaration from Mr Ray Stuart who was her former manager at NDOT Technologies confirming her employment.
We acknowledge that there are gaps in the evidence of an employee and employer relationship between the Applicant and NDOT Technologies that one would expect from a normal employment arrangement. We make no excuses for the business - based on the evidence before the Tribunal and the testimony of the Applicant it is clear that the business was not operating functionally, and there were obvious deficiencies in how the business operated. However, our contention is that the Applicant was employed by NDOT Technologies, and due to circumstances beyond her control she has fallen victim to the dysfunctionality of the business. The Applicant has only been able to secure two payslips from NDOT Technologies which further evidence that the business was not adequate at issuing payslips either regularly or accurately. The Applicant states in her statutory declaration that upon asking any questions to Mr Kavandappan, she was often met with a negative response. What is clear is that the business appears to not have met their obligations in terms of the nomination and record keeping, however these deficiencies do not flow on to the Applicant and she should not be punished for the business’ poor practices.
The visa application was granted on the basis of correct information that the Applicant worked in the role as Business Analyst for NDOT Technologies. The Applicant has endeavoured to do everything in her power to demonstrate that she was working at 1/165 Cremorne Street, Richmond, Victoria 3121 and she should not be penalised for the dysfunctionality of the business. The Department’s assessment of both NDOT Technologies employer nomination and the Applicant’s visa application ensured that all requirements were satisfied before the Department approved the nomination and visa application. Accordingly, the Department was satisfied as to the legitimacy of NDOT Technologies and approved their nomination application.
Before the Applicant was unable to contact her previous employer, she had no reason to suspect that the information provided by NDOT Technologies was not genuine as alleged by the Department. Any information regarding NDOT technologies lies with the business and does not pertain to the Applicant. There is also no evidence before the Department or Tribunal that support a finding that the Applicant was aware of, or complicit with, the lodgement of any alleged non-genuine documentation lodged with the nomination application.
All information relating to the businesses, its structure, the operations and functioning of the business, the position and its tasks, and also the market rate salary, all relate to the nomination in question which was approved by the Department.
At no time was the Applicant privy to any confidential information regarding the business as specified in the Department’s section 107 notice, and subsequently the Tribunal’s request, and therefore it cannot be reasonably expected for her to comment on that information.
e) Intention to Provide Incorrect Information and Bogus Documents
The Department have alleged that the Applicant provided a bogus document as defined at section 5(1) of the Act, specifically being her employment contract. The Applicant contends that the employment contract is not a bogus document and that she signed this before Mr Kavandappan and the businesses’ lawyer, Craig Nixon at Mr Nixon’s business address. In light of the Applicant’s testimony and our submissions above regarding the Applicant working for NDOT Technologies as a Business Analyst at 1/165 Cremorne Street, Richmond, Victoria 3121, we submit that employment agreement is not a bogus document as defined at section 5(1) of the Act.
With respect to providing the TRN with the visa application and the Department’s allegation that the Applicant provided incorrect information, it is submitted that at the time of the application, which was submitted by NDOT Technologies lawyer Craig Nixon, the Applicant was genuinely under the belief that she was being sponsored for the 186 visa application by NDOT Technologies. Further, the TRN referred to the nomination application in question – the Applicant did not provide the nomination application or the Department’s nomination approval notification. She merely provided the TRN which links her visa application to the nomination application. Accordingly, we submit that this does not meet the definition of ‘incorrect information’ as set out in section 101(b) of the Act.9
The Applicant’s migration history and the care she took to provide consistent, clear and correct information to Mr Nixon in support of her subclass 186 visa application demonstrate a history of compliance with Australian migration law. The Applicant has also previously held visitor visas and complied fully with her visa conditions and, we are instructed, departed Australia before the expiry date of her visa. It is also submitted that despite incorrect information alleged by the Department, the Applicant is, and has been, a credible and honest person, and a witness of truth. We note that throughout the subclass 186 visa application process the Applicant has provided the correct information and documentation and has been forthright and clear in all documentation she has provided, and has also provided a good level of detail in her most recent statement.
Extension of Bogus Document Implausible
It is important to note that the falsity of any other documentation provided by the Applicant to the Department is not an issue in contention in this matter. Therefore, it is understood that the Department accepted the Applicant’s qualifications and other employment references to be true and correct.
For it to be accepted that the Applicant did not work in the position she claims at NDOT Technologies, it would have to be accepted that she forged, falsified or otherwise manipulated an astounding array of documents. Further, for it to be accepted that the Applicant’s employment and place of employment is not as she claims involves, by necessary implication, a finding would need to be made that the Applicant engaged in some sort of elaborate fraud, falsifying a significant amount of documents. In our submission, a reasonable decision-maker could not make such a finding based on logically probative evidence. In light of the above, it would not be considered reasonable that the allegation put forward by the Department would outweigh the substantial body of independently verifiable evidence provided by the Applicant as to the genuineness of his employment.
In summary, the Applicant’s visa should not remain cancelled as she has complied with section 101 of the Act to the best of her ability and she should not be penalised for the unforeseeable circumstances of her previous employer’s business. The Applicant has sought to make further inquiries regarding her previous employer’s business which has caused her a considerable amount of stress due to the time that has passed since her employment, and also due to the fact that the individuals in questions are unwilling to help her. The Applicant was a genuine applicant and has not violated what has written on the application form, and any violations that may have occurred pertain to the business and were completely out of her control which she cannot be faulted upon.

The submission of 30 October 2020 also makes reference to a number of AAT decisions where a review has been remitted in a set of comparable circumstances.
As noted in support of the review application the applicant provided a statutory declaration to the Tribunal as follows.
“l, Reeta Oad of [address], Sole Trader, make the following declaration under the Statutory Declarations Act 1959:
1.I make this statement in response to the invitation to comment on information from the
Tribunal. I continue to rely on my previous statements made dated 9 March 2019,24 March
2019,25 March 2019 and 26 March 2019.
2.I initially arrived in 2014 in August to visit my family on a e-visitor visa for 3 months and
returned to Finland after this. I then came again to Australia to visit my family on 23 May 2015
and this time I thought to move here since I loved the country and people here and also because
my family was here. Therefore, I started looking for work and also requested my family to help
me in this search. I gave copies of my resume to my siblings also so that they can drop it
wherever they feel the right job opportunity was for me.
3.As I have previously worked as computer analyst in Pakistan and I decided to look for similar
jobs here in Australia. I have also obtained a master's in computer science in Finland. I googled
the positions and came across NDOT Technologies Pty Ltd ('NDOT Technologies') as an lT
business. I then came across the job advertisement from NDOT Technologies on their website -
NDOT.com.au website. The same advertisement was also on the gumtree website. I submitted
an application for the job in around June 2015. At the same time, I was sending my resume to so many other places by hand and visited many lT and consultancy firms. Some of the companies I
still remember where I applied for the job were:
Natvia Natvia.com
iSignthis Ltd isignthis.com
Vectron Systems Australia Pty Ltd vectron.com.au
Reflex Technology Group rtg.com.au
Aussie Broadband Pty Ltd aussiebroadband.com.au
4.I heard back from NDOT Technologies within 2-3 weeks and was called for an interview via
phone. They asked about my qualifications and experience, where I was from etc. Later on they
called me again and asked me to come for a face to face interview at 165 Cremorne Street,
Richmond, Victoria. I went there via train and I reached on time. I could see stairs straight
leading to their office upstairs. When I reached there, I could see a small sitting area and then
there were many cabins/small rooms all over the floor and in the middle, there were some
desks, where around 5-6 people were working. I then met one of the individuals by the name of
Jane Lu who came to me and asked me why I was here. I told her that I am here to see Aravind
for job interview. Then she went to the first room and informed him. After that she asked me to
wait in sitting area and she herself went back inside. As far as I remember I saw a sticker on the
door stating 'NDOT Technologies'. There were buildings on one side, and other buildings on the
other side and there were many other shops and cafes. The train station was about 15 mins
walk from where the business was.
5. At the end of the interview, Aravind congratulated me and offered me the job. He told me that I
will need to go through a long immigration process and be sponsored and that their lawyer,
Craig Nixon, will assist with the application process. I had another offer from Natvia, but
because I had an offer from NDOT Technologies and found this role more challenging for me and
it as a well reputed multinational firm.
6. The next day, I received a call from NDOT Technologies lawyer, Craig Nixon, to submit my
qualifications documentations which I did in person to his office at level, 2 Adelaide Street,
Cremorne, Victoria 3121. After this I did not hear from NDOT Technologies for a while, then in around February 2016,I received a call asking me to come Craig Nixon's office to sign the
employment contract in front of him and Aravind. The visa application was then applied for by
Craig Nixon and I received an email from the immigration department that my visa status had
been changed from e-visitor to bridging visa. Accordingly, I was able to stay in Australia until my
visa was processed. I never saw a final copy of the visa application and did not know what
documentation had been uploaded to the application as I provided all of this to Craig Nixon.
Craig Nixon then informed me about my visa 186 grant on 17th of October 2015.
7.My first day of employment was 1 November 2016. My family and I had recently shifted to my
parent's place in Pakenham and I remember having to catch the first train at 7.00am. I used to
wake-up every day early in the morning and leave my home around 7:00am then I used to catch
train towards city and I used to get off at Richmond Station. From there it was around 10-15
minutes' walk to my workplace.
8.I used to start at 9am at NDOT technologies however would often arrive around 15 minutes
early. The office space was open plan - | could see the stairs going up to the first floor and there
was a small sitting area and there was no reception area or anything. There were seating places
and Aravind was working there with a few other people. Aravind asked me to follow him and
allocated me with the desk and computer - he asked me to use his email Aravind@Nelqt eom.au
till I get my email. He told me that previously their employees use to steal their data and that
this cannot happen otherwise I would be fired. Aravind then introduced me to Ray Stuart as my
Manager and Jane Lu as the Marketing Consultant. Aravind was the one who helped me learn
everything there and I was supposed to report him and Ray Stuart. I never received a login from
Aravind and I found this strange, but I was given work every day and was getting to know the
system and I had to report to the manager, Ray Stewart, or Aravind at the end of the day so I did
not raise concerns in regards to this.
9.There were few other individuals working there and an individual called Krishan (lT Student)
who also who used to work there. I never got a chance to get involved with them in any
conversation than simply saying hello and hi. I used to finish my work at 5pm and used to walk
back to train station and from there I used to catch Pakenham Line and come back home. When
I was working there, I did realise there are many other companies operating from 1/155
Cremorne Street Richmond, Vic 3121. Many of them were under Aravind's name such DNA Advisory and Show bags and NDOT Technologies. We mostly had international clients and few
Australian clients. There was a lot of turnover in staff and over the months that I worked I would
see new faces all the time.
10. I worked as a Business Analyst with NDOT Technologies from Nov 2016 - May 2017. I never took
any leave even though my father was sick with cancer in the hospital. The only leave I took over
the Christmas period when the business was closed due to the public holiday season. I was very
new to this Australian workplace which was very different than my home country where I
worked last. I initially asked my boss many questions related to the job and tax payment as well
as how other systems worked here but Aravind would just say to me "do not get very excited
you have a long way to go and you are very new here. Slowly you would learn everything, do not
worry, we will guide you through every necessary process when time comes". He asked me to
focus on my work that's what is most important at the moment. After that I only asked him
work related questions and he used to answer them well. Slowly I realised there was little chaos
going on in the office, but I was never informed anything about it at all. I kept on working with
full dedication.
11. As previously submitted, the true and correct information is that I was physically working at
L1/165 Cremorne Street, Richmond from November 2016 - May 2017.I only received two pay
slips from NDOT Technologies with respect to my employment. I have provided these to my new
lawyer. I also used to visit cafes and shops, and also 7 elevens where I used to have lunch nearby
to 165 Cremorne Street, Richmond, but because it was a long time ago I have not kept the
receipts. I used to use public transport mostly to get to work however I no longer have my myki
card. My husband used to pick me up from my workplace as well as my brother and his friend.
12. I confirm that I have never worked at 501 Church Street, Richmond, Victoria.
13. The employment agreement is real and is not a bogus document and I signed this in the
presence of Craig Nixon and Aravind at Craig Nixon's office. My intention was always to take up
the employment for two years. My family and I belong to a Hindu minority in Pakistan and we
have struggled a lot and my parents have always encouraged me to do the right thing and strive
for the best. l received a scholarship to Finland which evidences my struggle and desire to
exceed, so there is no way that I would intentionally do the wrong thing or put harm to myself
and my family.
14.I had never seen a copy of the lease agreement, or training receipts or any administration aspect
of the business. I was not involved in any way in the nomination application for NDOT
Technologies. The information I have managed to provide to the Department in response to the
cancellation notice is because I had to beg Aravind to provide this to me.
15.All my famlly members and some of my friends are aware that I was working at NDOT
Technologies. I have had many family members visited me at my work address including my
nephew, my brothers, my sisters, and friends who have all provided statements. My real estate
agent was also aware that I was working at NDOT Technologies.
16.Whilst I cannot comment on the lease agreement details and the ABN registration details of the
business, as stated above, I was aware that Aravind owned two other businesses by the name of
DNA Advisory and Show bags. The other employees who were working for these businesses
were also there on the same floor- all the people that were there were working for Aravind
17.Although I was there for very short time, I did get chance to contribute to few projects there,
however, it became increasingly clear that NDOT either did not requlre my services or did not
have sufficient cash-flow to pay the salary and entitlements pursuant to contract, and
management of business appeared to be increasingly chaotic,
18.On one occasion in around April 2017 I noticed that Ray and Aravind and a couple of other
individuals were talking secretively amongst each other. I sensed that something was wrong, so I
inquired with Ray about what was happening with the company and asked if my employment
was going to be affected. He gave me full confidence that l will not have any problems with my
job as the management is under trouble due to their own matters which cannot be disclosed.
However, around 31 May 2017, Aravind called me that he no longer has any work for me and that NDOT Technologies are unable to pay me and I had to go home. I had no idea what to do as
I knew I was supposed to work for him for two years. I asked Aravind when the business would
be calling me back and he got a bit harsh with me and told me that they would be calling me
back once they get work for me.
19.I then contacted Aravind after a few days and asked when I could recommence working and he
told me to wait for his call. He told me that he would call me and to stop harassing him. I then
contacted Craig Nixon, and he told me that I was a permanent resident and Aravind was the one
making me redundant and are not giving me work to do and it had nothing to do with my
permanent visa. He told me that he was an immigration lawyer and that the situation had
nothing to do with my visa and I did not have any obligation to stay with this employer. He told
me I should take some break because my father had passed away and I was pregnant so I should
take some rest and then get back into the field.
20.With passage of time my health became worse due to personal relationship issues stress and I
was pregnant I was unable to take any medication. To take a sigh of relief I travelled to USA to
my eldest sister in September 2017. Looking back now I wish I had contacted the department
and informed them of what had happened, but I was honestly waiting for Aravind to call me
back and trusted what Craig Nixon had advised me.
21. After I received the 'Notice of lntention to Consider Cancellation' ('NOICC') in March 2019 and I
tried to contact many individuals at NDOT Technologies however no one is responding to my
queries. I contacted Craig Nixon and initially he was willing to provide a statement on my behalf
because I signed the employment agreement in front of him at his office. However, when I
followed up with him, he told me that he cannot help me anymore.
22. I contacted Aravind, however he was not responding. I then sent the NOICC to him, but he didn't
respond. When I kept pushing for a response, he told me he was in lndia and I didn't hear from
him after this. I then contacted Utpal Dar who was the accountant for NDOT Technologies, and
he initially told me that Aravind had opened a new business at 'Waterman Suites' in Chadstone and I could find Aravind there. When I went there, I saw Krishan who had worked as trainee at
NDOT Technologies. When l told Krishan that l was in trouble and needed to see him, he
changed his statement and said he didn't know where Aravind was. I waited for Aravind, but he
never met me. When I waited for about five hours there and Aravind didn't come out I thought I
should go to the Australian Education Academy.
23.I then went and saw the authority regarding the training receipts to try and get information
about this. I was pregnant and had to wait for 2 hours but I really wanted to resolve this issue. I
spoke with the head of the institute. I finally met with one of their employees by the name of
Mr Vivek and he confirmed that he knew NDOT Technologies and Aravind and that lmmigration
had already contacted them and we had confirmed that the receipts were genuine and paid. I
requested if I could get proof of the confirmation of invoices please. They told me Vivek would
contact Aravind and get back to me. I thanked him a lot as I was relieved that at least one step
was done. Then I went back to Chadstone, but I was informed that Aravind has left already.
24.Then I kept on messaging Aravind pushing him to meet me. Aravind then contacted me and told
me to come and see him. I went the next day to go and see him and he told me that he has no
idea what has happened and why the lease agreement and training receipts are bogus and this
was not true and that he would help me provide the evidence. He said further that he will
provide evidence such as statutory declaration from the employees working there. And that he
will consult with the landlord about providing further evidence regarding NDOT Technologies
tenancy, Aravind only sent me the training receipts screenshots which confirmed that these
were genuine that I have already provided to the Department, however unfortunately I never
heard from Aravind again. I have also attempted to contact my former manager of NDOT
Technologies, Ray Stuart and Jing Lu as well, however they have not been responding to my
telephone calls at all. After many tries, Ray Stuart contacted me on 24 October 2020 from a
private number and told me that he was ready to help me by providing a statutory declaration. I
met him in person, and he provided the statutory declaration that I have provided to my lawyer.
25.Unfortunately because so much time had passed since I had worked there, I did not have any
proof to attach but I responded to the Department well with all the best possible facts I had at
that time.
26. I received an email from immigration on 11 December 2019 that they have cancelled my visa
and my husband and my elder daughter's visa, and we need to leave this country. We were in
shock. This not just impacted us morally but financially too. Centrelink stopped Family Tax
benefit even for our two Australian citizen children and all Medicare cards were cancelled
initially, later after trying so hard for around 3 months they gave Medicare to us. My husband
and l were not allowed to work initially for work permit we applied later and then they
permitted us after a month or so. lt was very hard to survive with very young children. When we
still had to pay all bills and rent and our medical expenses.”
The applicant also provided the Tribunal with copies of pay slips, confirmation of training receipts, evidence pertaining to the address of NDOT Technologies and evidence pertaining to the applicant qualifications in Information Technology. These documents have been duly considered.
The Tribunal took evidence from the applicant at hearing on 19 January 2021.
At the outset of the review hearing the Tribunal went into considerable detail about the history of the cancellation of the applicant’s visa under s.109 of the Migration Act and about the merits review process and the respective issues in the review before it.
The applicant provided the Tribunal with her name and date of birth. The applicant confirmed that she was born in Pakistan.
The Tribunal asked the applicant about her education history in Pakistan. The applicant stated that she completed a Bachelor of Computer Science followed by a Masters in Business Administration in Pakistan. She advised that as a result of her studies she was awarded a scholarship to study in Finland. The applicant travelled to Finland and completed a Masters in Computer Science. Whilst the applicant was in Finland she applied for protection on the basis that she was from a Hindu minority in Pakistan and on that basis was the subject of ongoing persecution. The applicant was granted protection in Finland.
The applicant advised that over the course of her career in information technology she had completed a number of certifications and that she had a significant level of experience in computer science. The applicant advised that she had worked as a Computer Analyst in Pakistan and she had also been involved in tutoring in information technology in Pakistan.
The Tribunal asked the applicant what attracted her to Australia in 2014. The applicant stated that her parents had migrated to Australia. The applicant advised that she was one of 11 children and that she had three sisters and three brothers who are resident in Australia. The applicant advised that she had two siblings living in the United States and two siblings living in Canada. The applicant advised that she travelled to Australia on an electronic travel authority in 2014. The applicant stated that she loved Australia and enjoyed the visit. The applicant returned to Australia for a visit in May 2015 and decided that she would look for work opportunities in the information technology field in Australia. The applicant advised the Tribunal that she sent her resume and made a number of enquiries to information technology companies in Australia. The applicant stated that she received a response from NDOT Technologies for prospective work as a business/computer analyst.
The Tribunal asked the applicant about the application process. The applicant advised that she was required to complete an application form online and to forward the business a covering letter and a copy of an updated resume. The applicant advised that 2 to 3 weeks later she received a call from the owner of the business Aravind who asked the applicant whether she would be available for a telephone interview. The applicant advised that she and the owner had a discussion for between 45 minutes and one hour and she was advised by the owner that he would get back to her in due course. The applicant advised that she was then contacted by the business to come in for a face-to-face interview at the business address at 1/165 Cremorne Street Richmond in Victoria. The applicant advised that she was subject to a face-to-face interview of around two hours duration. The applicant she was advised that the business would be willing to sponsor her for an ENS visa and that a businesses migration lawyer, Craig Nixon, would contact her in due course with regard to this application.

The Tribunal asked the applicant to provide a description of the business NDOT Technologies. The applicant advised that the business provided appropriate software options to a range of businesses that they could utilise to promote and grow their businesses. The applicant gave an example of one business which was a luxury car hire company. The applicant stated that she did some initial research around this business including a business analysis and she then had to develop an appropriate software package for this business to enable consumers to access the business in a seamless way. The applicant advised that this required an analysis of prospective web traffic, and an analysis of competitors, and undertaking Google and Facebook research in order to make a presentation to pitch to the client. The applicant stated that many of the clients of the business were overseas-based businesses. The applicant stated that she and Aravind would have discussions about the best software technologies for a particular business and through the process of research about the respective business and stakeholder engagement, what products would best suit the software needs of the respective business. The applicant stated that she would prepare a report for the owner of the business, that he would pitch it to the client and they would then discuss product finalisation and coordinate between the client for product delivery. The applicant stated that the business also provided troubleshooting services to its clients that she was also involved with.
The Tribunal asked the applicant about her initial thoughts when she attended the physical environment of the business for the first time. The applicant stated that she travelled by train to the business and she took stairs to the first level where the business was located. She advised that it was an open plan office structure and that the employees of the business were working on Dell computers and they seem to be well resourced. The applicant stated that when she first attended the business for an interview that the owner of the business took her to a nearby café for the interview.
The Tribunal asked the applicant whether she had a contract of employment. The applicant stated that she was provided with a contract of employment, a copy of which she now understood was provided by the business in support of the nomination application to the Department. The applicant stated that she had been offered a salary of $6000 a month and that she was to be paid fortnightly. The Tribunal asked the applicant whether she received payslips or other payment records electronically pertaining to each fortnight’s pay. The applicant stated that during the six-month period that she worked for the business that she was paid fortnightly in cash, and that the amounts that she received each fortnight fluctuated considerably. The applicant stated one fortnight she would receive $500 then the next fortnight that she would receive $1000. The applicant stated that the maximum that she received over a two month period was $3000. The applicant advised that she was only ever issued with two payslips.
The Tribunal asked the applicant whether she spoke to the owner of the business about the deficiencies in her pay and about the pay being provided in cash with no formal records. The applicant stated that she spoke to the owner about this and was told not to worry about ongoing pay issues that she would be duly compensated and that she should be focusing on her work at hand.
The Tribunal asked the applicant how many hours she worked each week and the applicant advised between 38 and 40 hours per week. The Tribunal asked the applicant whether she believed that she was being abused or taken advantage of by this business and she confirmed that in retrospect she did. The applicant stated that the deficiencies in her pay demonstrated that she was being taken advantage of, and the applicant advised that as she had an unemployed husband and children that she did not want to ask too many questions and this was compounded by the fact that she was new to Australia. The Tribunal noted that the applicant had a number of siblings in Australia and asked the applicant whether she spoke to them about her prevailing conditions at work. The applicant stated that she spoke to her brother about the prevailing conditions at work. Having regard to the ongoing underpayments the Tribunal asked what responses she received from the owner of the business. The applicant stated that the owner advised her that she would be alright, that this was a multinational firm, that she was dependent on him for her visa and if she did not want to lose her job she should stop asking so many questions.
The Tribunal noted that from time to time, Australian businesses, when employing a temporary worker or a permanent worker under a respective visa scheme would subject that worker to inordinately long hours and underpayment and at all times advising the visa holder that if they complained about the prevailing work conditions that they would be reported to the Department for a breach of visa conditions or warn them that they were prejudicing their permanent residence status. The Tribunal noted that these cases were a form of modern- day slavery and, as a consequence, the Australian government had set up antislavery Commissioners around Australia to deal with this problem. The Tribunal asked the applicant whether she believed that she was the subject of abuse as a new immigrant during her employment by NDOT Technologies and the applicant advised that she believed that she was.
Conclusion on non-compliance
For the following reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
The applicant presented as a credible and honest person and gave evidence at hearing in a comprehensive and forthcoming way. The applicant has an impressive curriculum vitae which indicates that she holds two Masters degrees, one in business administration from Pakistan and the other in computer science from Finland. She also holds multiple certifications in IT and has significant work experience in the IT field in Pakistan including as an information technology educator. The evidence before the Tribunal makes it abundantly clear that the applicant was eminently qualified for the nominated position of Analyst with NDOT Technologies.
When the applicant was in Australia in 2015, she decided to approach a number of IT businesses in the hope of securing a position with an Australian business that could put her on the pathway to permanent residence in Australia. After putting out her resume to a number of businesses she was contacted by NDOT Technologies who expressed an interest in her qualifications and experience. She underwent a telephone interview followed by a face to face interview of almost 2 hours duration and was then offered a position which would be predicated on the business lodging a nomination application for approval with the Department, listing the applicant as its nominee to work in the business as an Analyst.
This nomination application is the domain of the nominating business and it requires the nominating business to provide a whole lot of documentary evidence to the Department to convince the Department that they satisfy all of the requirements found in regulation 5.19 of the Migration Regulations relevant to the approval of the nomination. Part of this consideration is that the business is lawfully and actively operating and often a business will submit financial documents and lease agreements for the business and an organisational chart for the business to corroborate this. The business also needs to provide evidence that there is a genuine need for the position and they will usually provide statements as to why a particular position is needed, once again they may submit an organisational chart to show how a prospective position fits into the business, provide statements from the management of the business demonstrating the need for a position and provide a contract for employment signed by the authorised officer of the nominating business and the nominee. As stated, all of this information is in the purview of the nominating business and all of it forms part of the application for approval of the nomination.
The evidence before the Tribunal indicates that the nomination application submitted by NDOT Technologies Pty Ltd led to the nomination being approved by the Department on 13 September 2016 and the applicant, as a consequence of the approval, was granted a Subclass 186 visa on 17 October 2016.
The evidence before the Tribunal indicates that the applicant commenced her employment with NDOT Technologies on 1 November 2016 and that she worked for this business on a full-time basis until such time as she was made redundant on 31 May 2017. At the time that the applicant was made redundant the owner of NDOT Technologies advised the applicant that work would again be forthcoming when things picked up in the business. The evidence indicates that the applicant called the business owner, Aravind, on a regular basis enquiring about the resumption of work, to be told that she should take a break as her father had recently passed away from cancer and she was pregnant. The applicant provided evidence that she was acutely aware of the fact that she should work for the nominating employer for at least 2 years and that she tried to fulfill this obligation, but her position was made redundant, and she was the subject of false promises by the business owner that work may resume in the future.
In support of her assertions that she commenced employment with NDOT Technologies the applicant provided the only two payslips that she received during her period of employment. The applicant advised that she was paid fortnightly and was paid in cash and that the amounts varied each fortnight, but she was always underpaid, and her pay did not conform with the pay requirements of her contract of employment. The applicant made a number of complaints about this to her employer, who advised her to focus on her work. The applicant also provided evidence of the high turnover of staff, the chaotic nature of the management, and the fact that she was never given her own log in account.
The applicant also gave a detailed account of the physical environment that she worked in and also provided at review stage, a statutory declaration from Mr Ray Stewart, the applicant’s direct supervisor at NDOT Technologies who confirmed the applicant’s employment at NDOT Technologies over 2016-2017.
The applicant provided a number of statutory declarations from her husband and a number of her siblings, a cousin, and a friend who had visited her at her place of work at 1/165 Cremorne Street Richmond and who confirmed her employment with NDOT Technologies.
The weight of the evidence before the Tribunal is such that the Tribunal finds that the applicant did work for her nominating employer from November 2016 until the end of May 2017 at which time, she was made redundant. The evidence indicates that the applicant was taken advantage of by her employer during this period in so far as she was under paid and the evidence strongly indicates that this employer failed to comply with Australian workplace laws and regulations. The evidence indicates that the applicant did not provide incorrect information in her visa application when she responded ‘yes” to the question whether she had an intention to take up the position for a minimum of two years. The evidence before the Tribunal indicates that the applicant clearly had this intention, she commenced the work on 1 November 2016, she attended her place of work each weekday in compliance with her contract of employment. The applicant engaged in a range of work for the business as an analyst. The applicant as noted, was subject to abuse by her employer by not being paid correctly. The applicant in due course was made redundant by this employer and ceased working for her nominating employer on 31 May 2017, retaining a hope of the position resuming when the workflow in the business picked up and this did not come to fruition. The intention of the applicant is clear and apparent in her behaviour.
The weight of the evidence before the Tribunal indicates that the employment contract that was submitted to the Department by NDOT Technologies Pty Ltd in support of the business’ nomination approval application was not a bogus document and that the applicant engaged in the said employment.
The Department initially found that the nominating business provided training receipts which were bogus in support of the nomination application. Evidence confirming the training and its payment has now been provided and the Department in turn has concluded that there was no non-compliance with regard to these particular documents.
The weight of the evidence before the Tribunal indicates that the applicant worked at 1/165 Cremorne Street Richmond for the duration of her employment with NDOT Technologies. The lease agreements provided to the Department by NDOT Technologies were provided by this business in support of their nomination approval application. They were not provided by the applicant in support of her Subclass 186 visa application. The Tribunal finds that the provision of this evidence does not fall within the purview of s.99 of the Migration Act.
The Tribunal also finds that the Departmental investigatory procedures with regard to the purported leases of commercial premises by NDOT Technologies, pertaining to the period of the employment of the applicant were neither safe nor sound. The reason for this is that this evidence was collated on the basis of conversations with other tenants in the premises who claim to have not known about NDOT Technologies. The collation of this material to ground adverse findings, is akin to hearsay evidence in the absence of more probative evidence that this business never occupied these premises. Evidence has been provided to the Tribunal at review that confirms the business address during the time of the applicant’s employment being located at 1/165 Cremorne Street Richmond. The evidence indicates that the business address for NDOT Technologies changed after the applicant was made redundant.
Should the visa be cancelled?
The Tribunal has decided that there was no non-compliance in the way described in the notice given to the applicant under s.107 of the Act. However in the event that the Tribunal did decide that there was non-compliance by the applicant in the way described by the notice given to the applicant this would be a case where the Tribunal would have exercised discretion.
The Tribunal notes that if it had to exercise it’s discretionary powers that the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     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
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors 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 lawful 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.
The Tribunal would be also required to have regard to any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there would be consequential cancellations under s.140.
·if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
·whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
·whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant’s representative has provided substantial submissions and annexures addressing discretionary factors in the event that the Tribunal was to find that the grounds for cancellation of the applicant’s visa existed. These submissions were received by the Tribunal on 12 January 2021 and have been duly considered. The submissions are strongly persuasive, and as stated if the Tribunal was required to have regard to the discretionary factors to set the cancellation aside, it would do so in this case.
The Tribunal gives significant weight to the present circumstances of the visa holder and the impact of the cancellation on her Australian citizen children having regard to the International Convention on the Rights of the Child. The submissions with regard to these factors note the following.
The Applicant and her family have been residing in Australia since 2017, a total of over 3 years and are well integrated into the community. The Applicant has provided details regarding her contribution and her family’s contribution to the Australian community in her previous statutory declaration submitted to the Department. The Applicant has also provided updated details and explains that her daughters have spent their formative years in Australia and have attended schooling Australia. The Applicant’s business that she opened recently is continuing and her husband, Mr Naresh Oad, is current working as a mobile technician. Further, the Applicant is quite active in the community and volunteers at the Salvation Army and Women’s Wonder Organisation helping many disadvantaged individuals in the community. We refer the Tribunal to the supporting letters in the support documentation and also to paragraph 12-15 of the Applicant’s statutory declaration. In our submission, despite her dire circumstances, the Applicant has applied herself to being a useful and productive member of society.
The supporting documents before the Tribunal regarding the Applicant’s activities indicate that she has undertaken various voluntary, community work and fundraising activities with, and on behalf of, her local community and she is clearly an active and engaged member of the community and continues to be involved in activities thereby making a valuable contribution to the community. We submit this factor should be afforded significant weight against cancellation of the Applicant’s visa.
In our submission, the Applicant’s children all engage Article 3 of the CROC being 18.6 Families with young children should be afforded a higher duty of care as the best interests must be a primary consideration for State parties. Further, State parties must take appropriate administrative measures to ensure that the child is afforded “such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents.”
Further, the Applicant has provided details in her statutory declaration at paragraph regarding the difficulty her children will face if they are forced to return to Finland due to being separated from
her husband and removed from a stable environment in Australia. The Applicant provides details of the hardship her daughter, Elayna, will experience due to her ongoing mental health issues.
The CROC requires Australia to ensure that all children in Australia enjoy the rights set out in the treaty including the unity of family, education, and health and disability considerations. As stated above, the Applicant has provided in depth details regarding her children’s current circumstances in her most recent statutory declaration. In light of this, we submit that it would not be in the best interests of the Applicant’s children to be forced to return to Finland and separated from their father.
We note that the Applicant’s youngest child, Vpratham, is an Australian citizen and currently does not hold either Finish or Pakistani citizenship. The Applicant states in her statutory declaration that it is very unclear in light of the difficulties the Applicant has had whether Vpratham would be able to obtain Finish or Pakistani citizenship. In the event that he is unable to, this would mean that Vpratham may have to reside in Australia on his own if the rest of the family are forced to return to Finland and Pakistan. We submit that this is a significant consequence of the cancellation as Vpratham may be separated permanently from his family which is against the rights set out in CORC.
In our submission, the principle of family unit confirms that the Applicant, her husband and two daughters should remain in Australia with the Applicant’s son, Vpratham.
As mentioned above, a child’s development is enhanced by the participation of both parents in the early years of their upbringing.7 This is further supported by Article 18(1) of the CROC under which it is recognised that parents have the primary responsibility for the upbringing and development of the child.
Under Article 9(1) of the CROC, State parties must ensure that a child shall not be separated from his or her parents against their will except in cases where a competent authority which is subject to judicial review determines that such separation is in the best interests of the child.
As Australia is bound by its obligations under the CROC, the Minister must give consideration to the children’s best interests when considering whether or not to exercise discretion to intervene in this case. The CROC requires that consideration must be given to the holistic development of each child, which includes consideration of family life, social networks and education. This consideration can be balanced with other important considerations, such as the need to uphold the integrity of Australia’s migration system and consideration of the Applicant’s migration history.

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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.
John Cipolla
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1404

27 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice