Park (Migration)

[2021] AATA 3878

Park (Migration) [2021] AATA 3878 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaewoon Park
Ms Sunmi Son
Miss Naeun Park
Master Haeseong Park

CASE NUMBER:  2102673

HOME AFFAIRS REFERENCE(S):          BCC2019/3367126

MEMBER:Andrew McLean Williams

DATE:27 September 2021

PLACE OF DECISION:  Brisbane

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 September 2021 at 12:02pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – incorrect answer on his visa application – director of nominating employer denied employing applicant – nominating business had changed its name – new business registered the previous company name – valid employment contract - power to cancel the visa does not arise – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 97-105, 107 – 109, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs cancelling the first-named Applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (‘the Act’).

2. The Delegate cancelled the visa on the basis of the Delegate having concluded that the first-named Applicant had not complied with s.101(b) of the Act, by reason that his Subclass 186 visa application as was lodged on 1 September 2016 contained an affirmative declaration regarding his agreement to work for his nominating employer - Kings World Group Pty Ltd (ACN 164 370 156) - for at least two years.

3. By way of a notice issued under s.107 of the Act the Department contends that on 2 July 2019 a managing director of Kings World Group Pty Ltd (‘the employer’) had informed the Department that the employer had never heard of a Jaewoon Park, and had never offered him employment, thus giving rise to grounds for cancellation because the first-named Applicant had declared his intention to work for that employer for at least two years in the application lodged on 1 September 2016.

4. The issue in the present case is whether the ground for cancellation described in the immediately preceding paragraph is made out and, if so, whether the visa should be cancelled.

5. 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 are each held by family members of the Applicant, and these were merely automatically cancelled, in consequence of the cancellation of the Applicant’s visa. That is, not by a ‘decision’ but rather by force of the operation of s.140(1) of the Act. As no ‘decision’ was involved in these consequential visa cancellations under s.140(1), the Tribunal’s jurisdiction is not enlivened with respect to these other applicants.

6. The Applicant and his wife - Ms Sunmi Son – each appeared before the Tribunal on 23 September 2021 to give evidence and present arguments and submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The Applicants were represented in relation to the review by their registered migration agent, a solicitor, Ms Gloria Eun of ‘Vision Migration’ (MARN 0601849). Ms Eun participated in the Tribunal hearing by means of telephone, and had previously prepared detailed written submissions, those now dated 16 September 2021.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should now be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 on their 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 their circumstances.

10. 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, thereby 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.

11. The Department issued the Applicant with a Notice of Intention to Consider Cancellation (‘NOICC’), issued pursuant to s.107 of the Act on 17 December 2020.

12. In this instance the NOICC particularises the alleged non-compliance only as a breach of s.101(b) of the Act, in that the Applicant is alleged to have provided an incorrect answer on his visa application submitted on 1 September 2016 when declaring that he agreed to take up the nominated position as a teacher of English to speakers of other languages (‘TOESOL’) with Kings World Group Pty Ltd (ACN 164 370 156) for at least two years.

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

13. The Department had received information on 2 July 2019 that Kings World Group Pty Ltd had never hired the Applicant to work in a TOESOL role. On the basis of that information, the Tribunal is satisfied that the Delegate had reached the necessary state of mind to at least engage s.107, such that the NOICC issued under s.107 on 17 December 2020 complied with the statutory requirements.

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

14. The issue before the Tribunal is whether there was non-compliance in the way described in the NOICC (s.107) notice, and if so, whether the visa should be cancelled.

15. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b), in the manner already described in paragraph 12, above.

16. On 11 January 2021 the Applicant’s representative wrote to the Department expressing the following:

    “You wrote [in the NOICC] that "on 2 July 2019 the Department were advised in writing by the Managing Director of Kings World Group Pty Ltd that they had never hired you, Jaewoon PARK, to work for the company." ......" Your employer Nomination scheme visa was granted on the basis of nomination number 215586958, specifically your employment as a Teacher or English to Speakers of Other Languages with Kings World Group Pty Ltd (ACN: 164 370 156).

    We note that based on ASIC Current & Historical Company extract, it shows that on 7 May 2019, the company has changed its name from ‘Kings World Group Pty Ltd’ to ‘Ballet N Balletfit Australia Pty Ltd’ (ACN: 164 370 156). We also note that the former Director of Kings World Group Pty Ltd, Mr Seok Chan Lee, who was director of the company from 20 June 2013 to 22 June 2018 has registered the same company name, Kings World Group Pty Ltd, with a different registration number (ACN: 633 362 893) with ASIC and is now the Director of [that] company.

    Based on the above information, the former Director owns the company’s name called Kings World Group Pty Ltd with a new registration number registered on 9 May 2019, and the current Managing Director owns the company’s registration number registered on 20 June 2013 with a new company name called Ballet N Balletfit Australia Pty Ltd registered on 7 May 2019. Please see attached copies of ASIC current & historical company extract for these companies.

    We note that there is a discrepancy between the company's name (Kings World Group Pty Ltd) and the company's registration number(ACN: 164 370 156) in the NOICC if you did not notice the company changed its name on 7 May 2019. So could you please clarify that whether the current Managing Director of Ballet N Balletfit Australia Pty Ltd(ACN: 164 370 156) provided the information on 2 July 2019 or the former Director of the company who currently owns Kings World Pty Ltd (ACN 633 362 893) provided the adverse information to the Department. The visa holder and his family have been suffering due to this allegation, so please urgently clarify the above information, so that we can provide further evidence and submissions accordingly.

17. As indicated in the immediately preceding paragraph the employment contract signed by the Applicant was signed on behalf of Kings World Group Pty Ltd on 20 November 2015 by a Mr Seok Chan Lee, who remained a director of that company until 22 June 2018.  Seok Chan Lee was again a director between 15 January 2019 and 5 May 2019.  Importantly however, on 2 July 2019 - when the Department received the adverse information described in paragraph 12 of these reasons - Seok Chan Lee was no longer a director of Kings World Group Pty Ltd (ACN 164 370 156); and that company was, by now, called ‘Ballet N Balletfit Australia Pty Ltd’. 

18. In the Applicant’s submissions to the Tribunal dated 16 September 2021, the Applicant deduces - at paragraphs 35 and 37 therein - that the adverse information received by the Department on 2 July 2019 was received from the current director, who did not become a director of Kings World Group until 30 June 2017.  Viewed in this light, that person was not a director of the nominating employer when the offer of employment was made to the Applicant on 20 November 2015, and nor was that person a director of Kings World Group Pty Ltd as at 2 July 2019 but now of Ballet N Balletfit Australia Pty Ltd.  Meanwhile, the employer signatory on the original employment offer dated 20 November 2015, Mr Seok Chan Lee, was as at 2 July 2019 a director of Kings World Group Pty Ltd with the different company registration number of ACN 633 362 893.

19. The nomination application by Kings World Group Pty Ltd (ACN 164 370 156) was approved by the Minister on 18 August 2016 and the Applicant’s Subclass 186 visa was granted on 8 February 2017, with the Applicant having applied for that Subclass 186 Visa on 1 September 2016. 

20. In his evidence before the Tribunal the Applicant stated that when the Subclass 186 visa application was submitted on 1 September 2016, he did genuinely believe that he would be working for Kings World Group Pty Ltd (ACN 164 370 156) in a TOESOL role for at least two years.  His basis for believing that is because he was a long-term English teacher in a high school in Korea, one whom had previously completed masters studies at Griffith University in Australia in TOESOL, whom had at that time received a four (4) year offer of employment to work for  Kings World Group Pty Ltd (ACN 164 370 156) by way of an employment contract dated 20 November 2015, presented to him in Korea by his Korean migration agent that had been signed by Seok Chan Lee on behalf of the nominating employer.  The Applicant informed the Tribunal that he was not subsequently advised that the offered TOESOL role would not be available to him due to financial difficulties within the nominating employer company until after his Subclass 186 visa had already been approved.

21. The Tribunal accepts that explanation and accepts that as at 1 September 2016 the Applicant genuinely believed it to be correct to state affirmatively that he agreed to work for the nominating employer for at least two years.  

22. For these reasons, the Tribunal finds that there was not non-compliance by the Applicant in the way described in the s.107 notice, which necessarily entails the making of a false declaration by the Applicant regarding his intentions to work for the nominating employer made on 1 September 2016. It follows therefore that the discretionary power to cancel the applicant’s visa does not arise.

23. 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

24. 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.

25. The Tribunal has no jurisdiction with respect to the other applicants.

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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