Quinn (Migration)

[2018] AATA 73

Quinn (Migration) [2018] AATA 73 (5 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Thomas Quinn

CASE NUMBER:  1608422

DIBP REFERENCE(S):  BCC2015/3787702

MEMBER:Jan Redfern (Presiding)

Hugh Sanderson

DATE:5 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa.

Statement made on 5 January 2018 at 3:36 PM

CATCHWORDS

Migration – Subclass 856 (Employer Nomination Scheme) visa – visa granted on basis the applicant was working as Program or Project Administrator – cancellation under s.109 - cancellation of visa following audit and sponsorship bar of the nominating employer - whether incorrect information or bogus document – relevance of VETASESS interpretation – evidence supported claim the applicant worked as Project Administrator - non-compliance not established – power to cancel does not arise -  cancellation set aside

LEGISLATION

Migration Act 1958, ss 5,101, 101(b), 102, 103, 104, 105, 107, 107(2), 109, 109(1), 140M, 362A
Migration Regulations 1994, r 2.86

CASES
Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate found that the applicant had provided incorrect answers and bogus documents in support of his visa application for the subclass 856 Employer Nomination Scheme visa. Further, the delegate found the reasons to cancel the visa outweighed the reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. We have concluded that the ground for cancellation has not been made out and the decision to cancel the applicant’s visa should therefore be set aside. Our reasons follow.

   BACKGROUND

4. The applicant is a citizen of Ireland and is currently 34 years old. He entered Australia in June 2006 holding a subclass 417 Working Holiday visa. He was granted a subclass 457 Business (Long Stay) visa in August 2007. He was granted a subclass 856 Employer Nomination Scheme visa on 14 March 2012. The sponsor for that application was Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil).

5. It was stated in the application for the subclass 856 visa that the applicant’s occupation was Program or Project Administrator. Various documents were provided in support of the application including an undated curriculum vitae of the applicant’s employment history, letters from Murphy Pipe and Civil supporting the application and an offer of employment stating the position was for a Project Administrator. It was on the basis of this information that the applicant was granted his subclass 856 Employer Nomination Scheme visa.

6. On 20 August 2014 the Department of Immigration and Border Protection commenced monitoring Murphy Pipe and Civil’s compliance with the Standard Business Sponsorship obligations. In December 2015 a delegate of the Minister found that Murphy Pipe and Civil had failed to comply with reg.2.86 of the Migration Regulations 1994 by failing to ensure that the primary sponsored person works or participates in the nominated occupation, program or activity. The delegate found that Murphy Pipe and Civil had failed to satisfy this obligation on 38 occasions.

7. The Department took action to bar Murphy Pipe and Civil from making future applications for approval as a standard business sponsor. On 8 December 2015 a delegate made a decision imposing a four year bar on Murphy Pipe and Civil pursuant to s.140M of the Act.

8. Following this decision, the Department reviewed the applications of a number of employees who had been sponsored by Murphy Pipe and Civil, including the applicant, and wrote to the applicant on 22 February 2016 with a Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. The applicant responded to the notice with a statutory declaration and other documents arguing he had not provided false information and bogus documents to the Department and making submissions as to why his visa should not be cancelled. The applicant’s agent also provided submissions in response to the NOICC.

9. In summary, it was submitted that Murphy Pipe and Civil had lodged an application for review with the Tribunal disputing the finding that it had not complied with reg.2.86 with respect to the applicant and therefore the issue had not been finally determined. As that issue had not been finally determined, it was claimed that the delegate could not have reached a state of mind that there has been non-compliance pursuant to s.107. In any event, the information on which the delegate relied to find that incorrect information had been provided was not accepted as indicating the applicant had not been employed as a Project Administrator. For instance, the Murphy Pipe and Civil spread sheet relied on by the delegate entitled “Training Matrix (Main) Rev 11” which listed the applicant’s position as “welding/TA” was only a document to record whether a particular person on a project had undertaken any specific induction training and whether they possessed any particular qualifications, certificates and competencies and was not a record of the applicant’s weekly job duties. Other documents, such as classifications for the purpose of Enterprise Bargaining Agreements for particular projects, did not accurately reflect the actual duties being undertaken by the applicant. The applicant denied he had provided incorrect information and bogus documents in support of his application and asserted that his duties were consistent with the role of a Project Administrator. He also made submissions as to why there were compelling reasons for not cancelling his visa.

10. The delegate rejected the submission that the issue of non-compliance had not been ‘finally determined’ and found that the applicant had provided incorrect information and bogus documents in support of his application for the subclass 856 visa. The delegate relied on the following:

    (1)  The delegate relied on the definition of Project Administrator and the qualifications required for the position as interpreted by VETASSESS[1] and found that the applicant’s employment history prior to his working for Murphy Pipe and Civil did not indicate that the applicant would have had the relevant skills and qualifications to undertake the role of Project or Program Administrator;

    (2)  The claim by the applicant that his role involved a combination of office and field work was not compatible with the duties outlined in the ANZSCO code[2] for a Project Administrator because this indicated that the applicant’s role was not entirely administrative;

    (3)  The pay rates claimed by the applicant would not be consistent with working in the position of a Program or Project Administrator but rather an operational role; and

    (4)  The combined weight of evidence obtained by the Department from the audit of Murphy Pipe and Civil indicated the applicant was not working in his nominated position as he had claimed.

    [1] VETASSESS is a vocational education and training assessment provider used by the Department

    [2] Australian and New Zealand Standard of Classification Occupations published by the Australian Bureau of Statistics, which includes definitions for a broad range of occupations in the Australian workforce 

11. The delegate then considered whether the applicant’s visa should be cancelled and, after taking into account the matters raised by the applicant concluded that the reasons to cancel the visa outweighed the reasons not to cancel. Accordingly, the delegate cancelled the applicant’s subclass 856 visa.

12. Murphy Pipe and Civil applied for a review of the sponsorship bar to the Tribunal and the Tribunal (differently constituted) considered the review and made a decision on 3 March 2017. This decision has been published by the Tribunal (Murphy Pipe & Civil Constructions Pty Ltd (Migration)[2017] AATA 960). The Tribunal was critical of the record keeping of Murphy Pipe and Civil and concluded the company had failed to satisfy reg.2.86 in relation to 16 nominees. The Tribunal was not satisfied that there had been a failure established with respect to 20 nominees. The Tribunal upheld the bar, but varied the period. One of the nominees on which the Tribunal was not satisfied Murphy Pipe and Civil had failed to satisfy reg.2.86 was the applicant.

    INFORMATION PROVIDED TO THE TRIBUNAL AND TRIBUNAL HEARING

13. The Tribunal was provided with the Department file which did not include all material relied on in the audit. The Tribunal requested this information, which was provided electronically, and these documents were provided to the applicant and his representative under s.362A of the Act.

14. The Tribunal conducted a telephone directions hearing on 28 June 2017, as a result of which, the applicant provided further evidence and submissions in support of the claims.

15. The applicant’s representative provided submissions to the Tribunal to the following effect:

    (1)  Any documents relied on by the delegate which were dated after the applicant was granted his visa are not relevant;

    (2)  The applicant was required to have training in the roles which he was supervising, and also in Occupational Health & Safety, but this does not indicate that he was performing this role;

    (3)  The timesheets, at best, indicate the applicant was working in a supervisory role and his work hours;

    (4)  There is no other ANZSCO job description which would be more appropriate than the one used to describe the applicant’s role at Murphy Pipe and Civil;

    (5)  Murphy Pipe and Civil has confirmed that the applicant was employed as a Project Administrator;

    (6)  Documents obtained from Murphy Pipe and Civil are inconsistent and are indicative of poor record-keeping by Murphy Pipe and Civil rather than a finding that the applicant was not employed in the designated role;

    (7)  The definition of the role by VETASSESS is irrelevant as the applicant nominated from the position based on his work experience and not a skills assessment;

    (8)  The pay rate of the applicant was consistent with that of a project or program administrator in Queensland and more than that of a plant operator based on information from payscale.com; and

    (9)  All the information and documents provided by the applicant were true and correct and that his employment with Murphy Pipe and Civil was as a Project Administrator.

16. The applicant appeared before the Tribunal on 22 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

17. The applicant provided details of his work history since he finished school in June 2001. His work in Ireland mainly involved labouring in the trenches and occasionally carrying out more skilled work as his experience increased. When he came to Australia on a working holiday visa he worked for a labour and plant hire company as a drainer in a variety of different locations in the field around Australia.

18. He started work at Pipe and Civil (the predecessor to Murphy Pipe and Civil) in September 2008 when he heard they were hiring people. He was employed as a Project Administrator. In his first job, which lasted about three months, the applicant was required to supervise other members in his crew, direct what work was needed to be done, train workers in the team who did not have his level of experience, sign off on quality assurance for the work done, and address any issues that arose in the project. He said he answered to another supervisor and described himself as being second in charge of a crew of about eight workers who were labourers and operated the plant.

19. He was then involved in the Sugarloaf Project in Victoria supervising welders on the site. He did not do any welding, nor was he qualified to do welding, but he was required to ensure all the safety procedures were followed and paperwork was completed for his part of the project. He was responsible for signing off on the registration of the workers, completing timesheets for the crew he supervised. The applicant was responsible for ordering the material required for the job and it was his responsibility to ensure that the necessary supplies were delivered to the site ahead of the team’s work progress. He supervised three labourers, four internal welders and one safety officer. He answered to the head supervisor, who had the responsibility to supervise about 10 teams with a total of about 80 workers. He reported to his supervisor if there were any problems and on the general progress of the project. If there was a problem that required a change in the work program he would have to raise it with his supervisor. He completed paperwork including daily pre-start instructions setting out the work for his crew and any special instructions; a weekly job hazard analysis report which was reviewed every day; and he reviewed the performance reports of the plant. He worked out of his utility preparing handwritten reports for the overall project supervisor. He completed the quality assurance reports onsite and provided them to the engineers.

20. The applicant was also required to deal directly with the onsite inspectors from the client, whose role it was to ensure the project was running to schedule and work being completed to the necessary standards. If there were any issues raised by the inspectors, the applicant was required to resolve those issues. He finished this position in December 2009.

21. From January 2010 to April 2010 the applicant was working on a project in Maleny in Queensland. He was based in the lay down yard ensuring supplies and materials were provided to the crews at the correct time and place. He was required to direct the drivers of the trucks to deliver the materials to the appropriate sites and maintained the paperwork for the operation.

22. He then worked on a project in Canberra supervising a crew of between six and eight workers similar to his role on the Sugarloaf Project. He was the assistant supervisor with the primary responsibility for the crew on the ground.

23. After this role the applicant was appointed to a position managing a team on the Sino Iron Ore project in Western Australia from December 2010 to November 2011. He had a team of about 12 workers comprising operators, pipe-men and labourers. It was his responsibility to ensure that all relevant ‘paperwork’ was up to date including the pre-starts checks, completing the environmental reviews and the job hazard reports and quality assurance reports. The paperwork he completed was provided to his supervisor or the project engineer. He dealt directly with the inspectors from the client. 

24. The applicant could not recall the basis of his pay over this time. He said that he was advised by Murphy Pipe and Civil how much he was paid as an annual salary, and accepted it. He could not recall when or why he was employed on an Employment Bargaining Agreement, but believed the terms were similar to his initial employment terms. He considered that he was well paid.

25. The applicant said he believed he was working as a Project Administrator as he understood the position to be. He believed that most of the duties he did from 2008 to 2011 were in a supervisory role. While he would assist members of his crew from time to time, his primary role during the day was administrative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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. A ‘bogus document’ includes a document that the Minister (or delegate) reasonably suspects is a document that was obtained because of a false or misleading statement (s.5 of the Act).

27. 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.

28. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision-maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision-maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

29. In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences.[3] Relevant to the facts of this case, the cancellation of a permanent visa, where the visa holder has been residing in Australia for years, has serious consequences and, in our view, any factual findings should be based on logical and probative material and not speculative information or inexact proofs.

    [3] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]

30. The questions for determination are therefore:

    (1) Was the delegate entitled to issue the notice under s.107, namely are we satisfied that the delegate reached the necessary state of mind to engage s.107?

    (2) If the answer to (1) is yes, was the notice valid?

    (3) If the notice was valid and having regard to any response to the notice, was there non-compliance by the visa holder in the way described in the notice?

    (4) If the answer to (3) is yes, how should the discretion to cancel be exercised, having regard to any response to the notice, the prescribed matters and any other relevant considerations?

31. 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. The critical issues before the Tribunal are, therefore, whether there was non-compliance in the way described in the s.107 notice and, if so, whether the visa should be cancelled.

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

32. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 by providing incorrect answers in the visa application and s.103 by providing bogus documents in support of the application.

33. The allegation raised by the delegate in the s.107 notice was that the applicant had provided false information when he stated that he had been employed as a ‘Project Administrator’ from September 2008 to the date of the application. It was claimed further that the documents submitted with the application were bogus documents because they provided false or misleading statements. These documents comprised a curriculum vitae, in which the applicant described his role as ‘Project Administrator, overseeing project operations, administration, layouts’ and a letter from Murphy Pipe and Civil dated 16 June 2011 which set out the applicant’s duties and described him as a Project Administrator. In summary, the basis for the non-compliance was said to be that even though the applicant claimed he was working as a Project Administrator he was, in fact, employed as a Plant Operator.

1. The letter from Murphy Pipe and Civil provided as follows:

   Anthony has been working for us from September 2008 to date as a Project Administrator. Anthony is employed on a full-time basis and is on an annual salary of $59,960.

   Anthony’s responsibilities include the following:

   ·Reviewing changes to work programs and projects requirements.

   ·Responding to inquiries and resolving problems concerning programs and projects.

   ·Managing paperwork associated with specific projects.

   ·Working with relevant managers, engineers and other stakeholders to ensure works are delivered on time and within budget.

   ·Overseeing work by contractors and subcontractors.

2. As part of the reason for finding the applicant had provided false information and bogus documents in support of his application, the delegate relied upon the definition for a Project Administrator used by VETASSESS as follows at [22]:

   In its definition of Project Administrator VETASSESS states “In order to be assessed positively for this occupation, applicants would need to demonstrate that their role is in the administration of the project or program, rather than the usual tasks for that occupation. Project management roles (such as in construction, engineering, graphic design) where the applicant is doing usual tasks of another occupation rather than just the administrative tasks, their primary role would not be considered as Project and Program administrator”.

3. The delegate at [23] also referred to the requirements to be a Project Administrator as stated by VETASSESS.

4. In summary, the delegate found there had been non-compliance with ss.101(b) and 103 of the Act because the delegate was not satisfied, based on the applicant’s employment history, that he had the relevant skills or qualifications to undertake the role of Project or Program Administrator. The delegate further found that the fact the applicant’s role involved a combination of office and field work ‘did not align with the duties outlined in the ANZSCO code for a Project Administrator’. In particular, the delegate found that the applicant’s role was part of the regular operations of Murphy Pipe and Civil, was not ‘entirely administrative’ and it was therefore incorrect to describe his role as a Project Administrator.

5. To understand these findings it is relevant to understand the ANZSCO code description of the occupation of Project Administrator and the role of VETASSESS more generally but, more  particularly, in the circumstances of this case. While we are not bound by the findings of the delegate and must make our decision afresh, it is useful to explain why we have come to a different view on the critical issues in dispute.

6. Since 2006 the various occupation lists used by the Department for the purposes of approving skilled visas have been derived from ANZSCO. ANZSCO is a skill-based classification of occupations for all jobs in the Australian workforce.

7. The Australian Bureau of Statistics, which publishes ANZCSO, has given the following guidance in relation to the interpretation of ANZSCO occupation definitions:[4]

   [4] Australian Bureau of Statistics website ANZSCO OCCUPATION DEFINITIONS

   ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

   The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

8. The position of contract, program and project administrator is described in ANZSCO as follows:

   CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:
   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
   In New Zealand:

   NZ Register Diploma (ANZSCO Skill Level 2)

   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   ·developing, reviewing and negotiating variations to contracts, programs, projects and services

   ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

   ·managing paperwork associated with contracts, programs, projects and services provided

   ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

   ·advising senior management on matters requiring attention and implementing their decisions

   ·overseeing work by contractors and reporting on variations to work orders

   ·preparing and reviewing submissions and reports concerning the organisation's activities

   ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

   ·reviewing and arranging new office accommodation

   Occupations:

   511111 Contract Administrator
   511112 Program or Project Administrator

   511112 PROGRAM OR PROJECT ADMINISTRATOR

   Alternative Title:

   Project Coordinator

   Plans and undertakes administration of organisational programs, special projects and support services.

   Skill Level: 2

9. We do not accept the delegate’s findings that the role of Project Administrator is purely administrative in nature. The position of Project Administrator, as described above, is a general description that would cover a broad and diverse range of occupations and industries. The definition recognises that qualification for the position may arise from relevant experience (assessed as at least three years) or formal academic qualifications which may require some on-the-job training. The description does not restrict the position to office work and expressly notes that the position includes the implementing of managerial decisions, overseeing work by contractors and reporting on variations to work. As such, a statement by the applicant in his visa application that he was working as a Project Administrator, even though he was working on project sites and was not undertaking purely administrative or office work, does not of itself make the information provided by him incorrect or false or misleading.

10. In the cancellation decision, the delegate claims that the applicant did not have the experience to be employed as a Project Administrator in 2008, relying on the VETASSESS criteria. This is one of the grounds said to establish non-compliance. While we reject this finding because it is not established on the evidence before us, we also note that this matter is irrelevant to the question of whether there was non-compliance in the circumstances of this case.

11. VETASSESS is a vocational education and training assessment provider. If the Department requires an applicant to have an assessment or if an applicant choses to obtain an assessment to facilitate the processing of their application, applicants may use VETASSESS for this assessment. The applicant was not required to undertake a skills assessment, nor did he do so. Accordingly, the use of the definition in which VETASSESS would conduct a skills assessment for the position is irrelevant when considering whether the applicant provided incorrect information or a bogus document in his application. The applicant did not make the claim that he met the VETASSESS criteria or that he held a diploma or higher academic qualification. Although the ANZSCO definition for Project Administrator states that most occupations in the group would have a level of skill commensurate with the qualifications and experience of an associate degree, advanced diploma or diploma, it provides a rider that three years relevant experience may substitute for formal qualification. It was on this basis that the applicant claimed he was qualified for the position of Program or Project Administrator.

12. Relevantly, the information about the applicant’s work history from the time he left school up until 2008 was provided to the Department at the time of the application for the visa. Presumably the delegate who assessed the original application accepted this evidence as satisfying the requirements because the visa was granted. While the Department may now consider that this would not be sufficient, it is not open to a delegate in considering whether the ground for cancellation is made out, or this Tribunal, to reassess the original application. The task is to determine whether there was non-compliance in the way described in the s 107 notice, namely, relevant to this case, whether the applicant provided incorrect answers and bogus documents in support of his application when he represented that he had been working as Project Administrator from 2008. It is clear from the evidence, that the applicant did not provide incorrect information about his skills and experience in this regard.

13. The applicant provided credible evidence to the Tribunal at the hearing as to his role while working with Murphy Pipe and Civil. The Tribunal finds that he was responsible for supervising various crews onsite. Some of the crews he was responsible for were doing work for which the applicant was not qualified to do himself. An example of this was when he was supervising a welding crew. This is a clear example of where his role was not to undertake the labour required, but to coordinate the activities of the crew in support of the organisational objectives, to report as to the crew’s activities in coordination with the projects overall objectives, managing paperwork, advising his supervisor of matters requiring attention, working with other relevant managers on the project and generally overseeing the work done by any contractors and the members of his crew.

14. These types of responsibility are reflected in the other projects the applicant was involved with whilst working with Murphy Pipe and Civil. Although generally working onsite, this was due to the requirements of the particular project. There are no claims in the documentation provided by the applicant to the Department when he made his application that the applicant was not involved in anything other than onsite work. The Tribunal finds the work the applicant was engaged in from 2008 was consistent with the role of a Project Administrator as described by the applicant in his curriculum vitae. The Tribunal also finds that the description of the applicant’s work in the letter from Murphy Pipe and Civil dated 16 June 2011 is an accurate description of the work he did over that period.

15. The delegate noted that the applicant had obtained tickets to operate various types of machinery which was said not to be consistent with an administrative role. The fact that the applicant holds these tickets and qualifications does not mean that he was not working as a Program or Project Administrator. The Tribunal accepts that in supervising various employees carrying out the work that it is an advantage for a project administrator to understand the nature of the work that he is directing people to do and to have had the experience in actually performing that work when he is promoted to an administrative position. In any event, the applicant listed these tickets in his curriculum vitae provided to the Department at the time of his application for the visa.

16. The Tribunal has considered all the information provided, including the information provided by the Department as a result of the audit of Murphy Pipe and Civil. The evidence before the Tribunal, as previously constituted to determine the sponsorship bar appeal and which we accept, was to the effect that the record-keeping of Murphy Pipe and Civil is not reliable (refer Murphy Pipe & Civil Constructions Pty Ltd (Migration)).

17. The Tribunal concludes that the weight of evidence supports a finding that the information the applicant provided in his application for a Subclass 856 visa was not incorrect. Further, the Tribunal finds that the information provided by the applicant to support the application, being his curriculum vitae and the letter from Murphy Pipe and Civil dated 16 June 2011, accurately sets out the work undertaken by the applicant over the relevant period and therefore they were not bogus documents.

18. Accordingly, the Tribunal finds that the applicant did not provide incorrect information or bogus documents in respect of his visa application.

19. For these 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. 

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 856 (Employer Nomination Scheme) visa.

    Jan Redfern
    Deputy President

    Hugh Sanderson
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.