Parmar (Migration) - [2023] AATA 4868

Parmar (Migration) [2023] AATA 4868 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep Singh Parmar
REPRESENTATIVE:  Mr Ravi Turan (MARN: 2217760)
CASE NUMBER:  2311580
HOME AFFAIRS REFERENCE(S):          BCC2023/1796416
MEMBER:Noelle Hossen
DATE:12 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 12 December 2023 at 12:45pm
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ground for cancellation – incorrect information in visa application – previous visa applications – known by another name – adverse immigration history – reliance on the agent – consideration of discretion – knowingly omitted the correct information – present circumstances of the visa holder – time elapsed since the noncompliance – best interest of the child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), Schedule 2, cl.573.326
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect answers in his application for the Student (subclass 573) visa application lodged on 31 May 2014 and therefore he has not complied with section 101(b) of the Act and his current visa, the skilled-independent visa, is liable for cancellation under section 109 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 29 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Pooja Rajput and Parveen Kumar. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The Department’s file includes a non- disclosure certificate issued under Section 357A of the Act in respect of various documents, which included CLD 2023 /21674228, ADD 2023/1926150, CLD 2023/21675626, CLD2023/ 23595199, CLD 2023/23599215 and BCC 2023 /1796416.The Tribunal formed the preliminary view that the Certificate was valid.
Prior to the hearing the Tribunal sent a letter to the applicant regarding the non-disclosure certificate, which was issued on the 7 August 2023 signed by the delegate of the Department. The Tribunal informed the applicant of the following reasons stated in the certificate for the non- disclosure:
Disclosure would reveal lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would likely to prejudice the effectiveness of those methods
Where information was provided in confidence, the provider of the information has not consented to the disclosure of the information to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parmar (Migration)

Details

AGLC: Parmar (Migration) [2023] AATA 4868
Case: [2023] AATA 4868
Decision Date: 12 December 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Parmar against the cancellation of his Skilled Independent (Permanent) (Class SI) visa, Subclass 189. The dispute arose from the Department's decision to cancel his visa on the grounds that it was granted based on incorrect information provided in his visa application, specifically concerning his identity and previous immigration history. The case was heard by Noelle Hossen.

The primary legal issue before the court was whether the decision to grant Mr. Parmar's visa was based, wholly or partly, on incorrect information or a bogus document. This required the court to examine the applicant's past visa applications, his use of an alias, and whether he knowingly omitted correct information when applying for subsequent visas, including the visa that was ultimately cancelled. The court also had to consider the discretionary nature of visa cancellation and whether, in the present circumstances, cancellation was warranted.

The court found that Mr. Parmar had indeed provided incorrect information in his visa applications, failing to declare a previous identity under which he had applied for and been granted, refused, and had visas affirmed by the Migration Review Tribunal. He had also failed to disclose previous visa refusals and periods of residence outside his country of passport. The court noted that Mr. Parmar had admitted to having another identity and residing in Australia under that name. While Mr. Parmar attributed some of his non-compliance to the advice of his migration agent, the court found that he had knowingly omitted correct information. The court considered the discretionary factors for cancellation, including the time elapsed since the non-compliance and the best interests of any child, though these specific factors were not detailed in the provided text.

The decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s written submissions received on the 16 October 2023 can be summarised as follows:He said that he had arrived in Australia in March 2007. He did an English Course and completed a Certificate IV in Business Management.He said that he completed a Certificate III in Commercial Cookery from Meridien College in 2009.He said that he then travelled back to India as his father had a medical condition in July 2009. After he returned from India in November 2009, he said that he continued to study at the college for a Certificate IV in Advance Accounting, but his college shut down. He said that he did not received a completion letter nor a refund from the College. He then said that his representative led him up the wrong path as he should have applied for a Graduate Visa as he had been studying in Australia for 2 years, but he followed the advice of the agent. He effectively blames the agent for the fact that his visa was refused, and he then applied for a Review of the Decision of the delegate to MRT.He said that he was on a bridging visa when he travelled back to India in June 2012 to check on his father. He said his grandfather and his father were both ill in India.He said that he returned to Australia in December 2012 and that he was unsuccessful with his Application for review of the Decision through the MRT on the 19 December 2012. He said that because of wrong advice by his agent that he accidentally overstayed his visa by 5 days. The Tribunal accepts his explanation that he did not intentionally stay over the period of his visa in Australia. He said that he returned to India on the 3 February 2013 and that his grandfather passed away on the 26 February 2013.His submissions did not address the specific details of why he did not study in the 3.5 years prior to the Decision and did not comply with his visa obligations. Conclusion on non-compliance For these reasons, the Tribunal finds that there was non-compliance with s 101 by the applicant in the way described in the s 107 notice.Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:the correct information The Delegate of the Department has aptly summarised in the Decision the instances that the applicant did not provide the correct information to the Department as follows:“In the application for the Student Visa (subclass 573) visa application lodged on the 31 May 2014, the visa holder failed to declare that he has another identity which he previously used to apply for Australian visas, enter and stay in Australia. Specifically, he provided incorrect answers when he answered “no” to the questions asking whether he had previously applied for any Australian visa, whether he has any visa application refused, and whether he lived outside of India, his country of passport, in the past 5 years prior to the lodgement day of the Student (Subclass 573) visa. He also incorrectly affirmed that he provided complete, correct, and up to date information in the application for the Student visa lodged on 31 May 2014 by acknowledging the statements at the “Declaration and Consent” section and providing his signature in this application.The correct information is:The visa holder, under the identity of Sandeep Sandeep , applied for a Student (subclass 573) visa on the 24 January 2007 and was granted the visa on 12 March 2007.The visa holder, under the identity of Sandeep Sandeep , applied for a Student (Subclass 572) visa on the 23 September 2010 and was refused the visa on the 26 November 2010. This refusal was affirmed by the MRT on the 20 December 2012.The visa holder, under the identity of Sandeep Sandeep, lived in Australia for the majority of time from your first arrival on 21 March 2007 to 3 February 2013.The visa holder provided similar answers in the subsequent visa applications, for the Temporary Graduate visa lodged on the 25 August 2016 and for the Skilled – Independent visa lodged on 20 October 2018, for which he was granted the visas.As such his answers in relation to his identity and his past immigration history, for the purpose of the Student (subclass 573) visa application, Temporary Graduate visa, and the Skilled – Independent visa, are not correct. The correct information is significantly different from the information provided by the visa holder in the Student (subclass 573) visa application form lodged on 31 May 2014.”

Ratio Decidendi

Legal Principle Established

Not applicablewhether 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 applicant lodged his Application for a Student visa (Subclass 573) visa on the 31 May 2014. In assessing the Application, the delegate considered all relevant criteria based on the information provided in the application, including the requirement prescribed at regulations 573.326 of Schedule 2 of the Migration Regulations 1994 in effect at the time. Based on the answers provided in the application form, including incorrect answers the applicant provided in relation to his identity and his past immigration history, the delegate was satisfied that the applicant met all relevant secondary criteria based on the information provided in the application, including the requirement prescribed in regulation 573.326 of schedule 2 of the migration regulations 1994 in effect at the time. Regulation 573.326 states that The minister is satisfied that: (aa) the applicant intends genuinely to stay in Australia temporarily, having regard to:(i) the applicant’s circumstances; and (ii) the applicant’s immigration history; and (iii) if the applicant is a minor – the intentions of the parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter Based on the answers in relation to his identity and his past immigration history, the delegate was satisfied that the applicant met all relevant secondary criteria. In his response to the NOICC, the applicant admits that he has another identity and that he resided in Australia in 2007 and 2013. The applicant arrived in Australia in 2007 on a student visa under the identity of Sandeep Sandeep. He applied for a further Student Visa on the 23 September 2010, and it was refused by the delegate of the department on the 26 November 2010. It was refused on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl. 572.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant applied to the Australian Government Migration review Tribunal on the 10 December 2010 for review of the delegate’s Decision. At the hearing it was recorded by the member that he had before him the Department’s file relating to the applicant. The Tribunal also had regard to the material referred to in the delegate’s Decision and other material available to it from a range of sources. The Decision record states that the applicant appeared before the Tribunal on the 19 December 2012 to give evidence and present arguments. The applicant was represented by his registered migration agent who also attended the hearing on the 19 December 2012. The record of the decision dated the 19 December 2012 states as follows on Page 9 of the Decision:21 The Tribunal asked the applicant to detail what he had studied and completed since arrival in Australia. He said he had completed a Certificate III in April 2009. He produced copies of some certificates detailing that he that he completed a Diploma of Business Management from 7 May 2007 to 18 April 2008; a Certificate IV in Business Management – the certificate is dated the 18 April 2008; and a Certificate III in Hospitality (Commercial Cookery) from the 28 April 2008 to 17 April 2009.22, I asked the applicant to detail what he had studied and completed since the completion of the Certificate III on the 17 April 2009, i.e., for the past 3 years and a half year. He said he had not undertaken any other studies as “ I have been waiting to get my visa… I have been mentally sick and went home to India for a period but after 21/2 months I came back, and I didn’t work as well. “I asked what he had been doing during this period if he hasn’t been studying. He said, “I’ve just been staying at home nothing else.” He then added that he had started work in May or June 2011 at first at a service station and then later cleaning.”23 I asked the applicant when he last studied. He confirmed this was the Certificate III and he had not studied after April 2009. I put to him that he could not claim that he was not studying as he was waiting for his visa as in the 1 and a half years prior to the Delegate’s Decision, and during which time he held a student visa, he was not studying. I put to him that with such a history I could not accept he was a genuine applicant for entry and stay as a student. His advisor Mr. Deshwal asked if he could clarify this with the applicant. Mr. Deshwal asked the applicant if this was correct, that he had not in fact not studied since the end of that course in April 2009, and hence wasn’t studying in the 1 and ½ years up to the time of the Delegate’s Decision. The applicant confirmed that this was correct.24 In response to the above I put to the applicant that I did not accept that he was a genuine applicant for entry and stay in Australia as a student, and I considered he had only enrolled in the current courses to extend his stay in Australia.25 The applicant said” that is all”. He had nothing further to say.