Pushparaj (Migration) - [2019] AATA 387

Pushparaj (Migration) [2019] AATA 387 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nithesh Pushparaj
CASE NUMBER:  1831580
DIBP REFERENCE(S):  BCC2018/3722836
MEMBER:Kira Raif
DATE:14 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.
Statement made on 14 February 2019 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visas – Subclass 476 (Skilled – Recognised Graduate) – providing fraudulent documents and incorrect answers with visa application – provisional certificates issued by the applicant’s university – Australian university approved support for business plans – conducting scientific research of benefit to a regional area – decision under review set aside
LEGISLATION
Migration Act 1958, ss 98, 100-105, 107, 109, 111, 140
Migration Regulations 1994, Schedule 2 cls 476.212; r 2.41; PIC4020
CASES
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration [2018] FCAFC 52
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s.109(1) of the Migration Act 1958 (the Act).
The visa applicant is a national of India born in July 1996. He was granted the Skilled Recognised Graduate Class VF visa on 20 November 2017. The visa was to be in effect until 30 May 2019. On 2 October 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 23 October 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
Did the Notice comply with the requirements in s.107?
Section 107 is only engaged if the Minister or delegate…

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 Pushparaj (Migration)

Details

AGLC: Pushparaj (Migration) [2019] AATA 387
Case: [2019] AATA 387
Decision Date: 14 February 2019

CaseChat Overview and Summary

The applicant, Pushparaj, sought review of a decision to cancel their Subclass 476 (Skilled – Recognised Graduate) visa. The cancellation was based on allegations of providing fraudulent documents and incorrect answers in their visa application, specifically concerning provisional certificates from their university, Australian university approval for business plans, and the conduct of scientific research beneficial to a regional area.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) as alleged in the notice of cancellation. Crucially, the Tribunal also had to consider whether, in light of all the relevant circumstances, the visa should be cancelled or if discretion should be exercised not to cancel it.

The Tribunal found that while there may have been non-compliance by the applicant as described in the notice under section 107 of the *Migration Act 1958* (Cth), it concluded that, having regard to all the relevant circumstances, the visa should not be cancelled. The Tribunal exercised its discretion to set aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 476 (Skilled – Recognised Graduate) visa.

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 Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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