Rajendra Singh (Migration) - [2025] ARTA 304

Rajendra Singh (Migration) [2025] ARTA 304 (21 January 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rajendra Singh
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2430798

Tribunal:General Member A McMurran
Place:Sydney
Date: 21 January 2025
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 21 January 2025 at 4:34pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa – Subclass 187 – Motor Mechanic (General) – sponsor had not nominated the applicant for the position as claimed by the applicant – applicant had provided incorrect information in his answer in the visa application – information reasonably supports a finding that the nomination was in fact authorised as claimed by the applicant – not satisfied that there was non-compliance – decision under review set aside
LEGISLATION
Migration Act 1958, ss 109, 359, 375
Migration Regulations 1994, r 2.41
STATEMENT OF REASONS
APPLICATION FOR REVIEW
Application

This is an application lodged in the Administrative Appeals Tribunal on 29 August 2024 for review of a decision made by a delegate of the Minister for Home Affairs under s 109(1) of the Migration Act 1958 (Cth) (the Act), to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal).
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
Background
The applicant, Mr Rajendra Singh, is a 30-year-old citizen of the Republic of India. He arrived in Australia on 5 December 2013 on a student visa. He had a partner who lives in Melbourne. His partner had a child in or about November 2024, but he told the Tribunal that he and his partner have now “permanently separated”.
The applicant’s visa history relates to his student visas granted in the period from 2013 – 2016 and then his Subclass 187 visa application made in September 2017.
At the time of this review, the applicant stated he had been visiting his former partner and young child in Melbourne. The applicant stated that he has no work at present. He is trained as a Motor Vehicle Mechanic and completed his training in Brisbane with an AQF Certificate III and IV in Light Vehicle Mechanical Technology and Automotive Mechanical Diagnosis. He had completed the courses of study in Australia by February 2016 from the New England College in Brisbane. He obtained a Diploma of Automotive Technology awarded in October 2016 in Brisbane, after which he moved to the Central Coast in NSW in 2017 to take up a position as an Automotive Technician.
On 14 September 2017, the applicant,…

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.

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Details

Case: [2025] ARTA 304
Decision Date: 21 January 2025

CaseChat Overview and Summary

The matter under review concerns Mr Rajendra Singh, an Indian citizen who holds a Subclass 187 Regional Sponsored Migration Scheme (RSMS) visa. The delegate cancelled his visa on the basis that the nominator, Central Coast Motor Group (CCMG), did not nominate Mr Singh for the position of Motor Mechanic (General) as claimed in his visa application. The Tribunal is tasked with determining whether the delegate's decision to cancel the visa was correct.

The primary legal issue before the Tribunal is whether the delegate correctly found that Mr Singh provided incorrect information in his visa application regarding his nomination by CCMG for the position. Specifically, the Tribunal must consider whether the information reasonably supports a finding that the nomination was not authorised as claimed by the applicant. The Tribunal also needs to assess whether the delegate was justified in concluding that Mr Singh failed to comply with section 101(b) of the Migration Act, which requires a visa holder to not have provided false or misleading information in their visa application.

The Tribunal examined the evidence provided by Mr Singh, including email communications between him, CCMG representatives, and Mr Craig Thomson, a former Member of the Australian House of Representatives. Mr Singh argued that he was not directly involved in the nomination process and relied on CCMG and Mr Thomson to handle the sponsorship ethically. The evidence includes emails showing that CCMG and Mr Thomson were managing the documentation requirements and that Mr Thomson submitted a resignation letter on Mr Singh’s behalf without authorisation. The Tribunal also considered Mr Singh's submissions that he acted in good faith and was not responsible for the nomination process.

After considering the evidence, the Tribunal concluded that the information did not reasonably support a finding that the nomination by CCMG was not authorised. The evidence suggested that Mr Singh was not directly involved in the nomination process and that he acted in good faith. The Tribunal found that Mr Singh had provided honest and reasonable explanations for the circumstances surrounding his nomination. Therefore, the Tribunal was not satisfied that there was non-compliance with section 101(b) of the Act.

Accordingly, the Tribunal set aside the delegate’s decision to cancel Mr Singh’s visa. The Tribunal found that the ground for cancellation under section 101(b) was not made out. The Tribunal ordered that the decision to cancel the visa be set aside, and the visa be reinstated.

Orders

Orders of the court

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Background

Background to the litigation

Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.Background The applicant, Mr Rajendra Singh, is a 30-year-old citizen of the Republic of India. He arrived in Australia on 5 December 2013 on a student visa. He had a partner who lives in Melbourne. His partner had a child in or about November 2024, but he told the Tribunal that he and his partner have now “permanently separated”. The applicant’s visa history relates to his student visas granted in the period from 2013 – 2016 and then his Subclass 187 visa application made in September 2017. At the time of this review, the applicant stated he had been visiting his former partner and young child in Melbourne. The applicant stated that he has no work at present. He is trained as a Motor Vehicle Mechanic and completed his training in Brisbane with an AQF Certificate III and IV in Light Vehicle Mechanical Technology and Automotive Mechanical Diagnosis. He had completed the courses of study in Australia by February 2016 from the New England College in Brisbane. He obtained a Diploma of Automotive Technology awarded in October 2016 in Brisbane, after which he moved to the Central Coast in NSW in 2017 to take up a position as an Automotive Technician. On 14 September 2017, the applicant, lodged his application for a nomination-related Subclass 187 Regional Sponsored Migration Scheme (RSMS) permanent visa (“the visa”). The applicant had applied for the position of Motor Mechanic (General), ANZSCO 321111 (“the position /role”). The applicant had declared that he had been nominated for the visa for the position by reference to Transaction Reference Number (“TRN”)[1], which referred to The Trustee for CCMG[2] Unit Trust (“CCMG / the nominator”). The visa was subsequently granted on 16 September 2020, following approval of the related nomination on 24 March 2020. [1] (TRN) EGOFNVGAED – see p1 of Application for Permanent Employer Sponsored or Nominated Visa, generated 14 Sep 2017 at 00:24:53 lodged by the visa applicant (“the visa application”).[2] The Central Coast Motor Group The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT. DecisionDelegate’s decision under review On 29 August 2024, the delegate cancelled the visa on the basis that CCMG had informed the Department that it had not nominated the applicant for the position as claimed by the applicant. Accordingly, the delegate found that the applicant had provided incorrect information in his answer in the visa application by declaring that CCMG had nominated him for the visa, and by providing the TRN that was relied upon.

Evidence

Evidence Before The Court

On 9 January 2025 the applicant made the following further submissions, which the Tribunal has considered, as to whether the ground for cancellation had arisen:9 Jan 2025 Submission of Additional Evidence – I am writing in response to your request for additional evidence regarding the review of the decision to cancel my Subclass 187 - Regional Sponsored Migration Scheme visa. Please find below my submission, supported by attached email correspondence, which substantiates my claims and demonstrates the circumstances surrounding my case. Summary of Key Evidence and Assertions 1.Lack of Knowledge and Control Over Nomination Process The attached emails provide clear evidence of the involvement of Mr. Craig Thomson, a former Member of the Australian House of Representatives, and Central Coast Motor Group (CCMG) in handling the nomination process. These communications reveal that I was not directly involved in managing or submitting documents related to my sponsorship. I relied in good faith on the business and Mr. Thomson to fulfill their responsibilities ethically and correctly. Detailed Evidence Email 1 :Proof of Business Turnover• Date: 03/08/2017 • This email contains information about the business's turnover, including BAS statements for 2016 and 2017, the CCMG Trust Unit Financial Statements, and the certification of company registration. These documents were shared with me in the context of the business's intention to sponsor me.Email 2: Request and Exchange Regarding Documentation • These emails show correspondence between Mr. Craig Thomson, CCMG representatives (Arthur Stanley, Angela Dawson, and Scot), and myself. • They highlight that CCMG and its representatives were managing the documentation requirements, such as Form 956, the trust deed, the lease agreement, and the organizational chart. The correspondence also demonstrates CCMG's dependency on Mr. Thomson for further documentation. This clearly illustrates that I was not responsible for submitting or verifying these documents. Email 3: Forced Resignation • Date: 27/09/2019 • I received an email from Mr. Thomson, in which he pressured me to resign after I refused to comply with an inappropriate and unethical monetary demand. This demand was not related to my performance but was retaliatory in nature. Email 4: Unauthorized Submission of Resignation • Date: 27/09/2019 • On the same day, Mr. Thomson submitted a resignation letter on my behalf without my authorization and CC’d me in the email. This unilateral and inappropriate action demonstrates his misuse of authority and further establishes my lack of control over the situation. Email 5: Employment Letter • Date: 13/08/2024 • Following the Notice of Intention to Cancel my visa, I approached CCMG for proof of my employment and nomination. The company provided an employment letter confirming my two years of employment but refused to assist with nomination-related documents. When I followed up with Scot, he stated that Mr. Thomson’s incarceration and the owner's unwillingness to assist left the mater unresolved.Conclusion The attached evidence unequivocally supports the following: • I was not directly involved in managing or submitting the nomination documents. • I acted in good faith, trusting my employer and Mr. Thomson to handle the process ethically and transparently. • Mr. Thomson’s unauthorized actions, coupled with CCMG’s lack of clear communication, have unjustly placed me in this situation.If CCMG had no intention of sponsoring me, it is unclear why they provided documents supporting my employment and allowed Mr. Thomson to act on their behalf. Their failure to communicate any issues or concerns at the time has resulted in significant, unwarranted consequences for me. I respectfully request that the Tribunal acknowledges my lack of control over these circumstances and considers my submissions in light of the evidence provided. I have acted honestly and with integrity throughout this process and should not bear the consequences of actions that I neither authorized nor agreed to. Yours sincerely, Rajendra Singh Attachments: 1. Email 1 – Proof of Business Turnover 2. Email 2 – Request and Exchange Regarding Documentation 3. Email 3 – Forced Resignation 4. Email 4 – Unauthorized Submission of Resignation 5. Email 5 – Employment LetterCONSIDERATION OF CLAIMS AND EVIDENCEWas the s 107 Notice (“the Notice”) validly issued?

Decision

Reasons for decision

This decision and statement of reasons is made by the Tribunal in place of the AAT. DecisionDelegate’s decision under review On 29 August 2024, the delegate cancelled the visa on the basis that CCMG had informed the Department that it had not nominated the applicant for the position as claimed by the applicant. Accordingly, the delegate found that the applicant had provided incorrect information in his answer in the visa application by declaring that CCMG had nominated him for the visa, and by providing the TRN that was relied upon. The delegate claimed to have information that this nomination by CCMG with the related TRN was “not authorised”. The applicant disputes that finding and has sought this review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.Information before the delegate The chronology for the visa the subject of this review is set out in the delegate’s decision. The applicant does not take issue with the chronology as disclosed. On 13 September 2017, CCMG had purportedly lodged the nomination application which nomination was approved on 24 March 2020. On 9 September 2021, ABF officers notified the Department that CCMG was now claiming the nomination application had not been authorised and it had not sponsored the applicant for the role. The information relied upon by the delegate is the subject of a 375A certificate discussed below. On 12 August 2024, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) . On 29 August 2024, the delegate recorded a Decision of Whether to Cancel under Section 109 of the Migration Act (“the Decision”). The delegate set out in the Decision information and a large number of documents reviewed and listed by the decision-maker and which are not repeated here. The decision-maker found that the applicant did not comply with s 101(b) of the Act. The Tribunal has had regard to that information. It includes details of the visa applicant’s professional qualifications and training, his employment records from CCMG commencing 24 August 2017, and a letter confirming the visa applicant’s employment. The applicant was not interviewed by the Department or ABF officers. He was however issued with the NOICC to which he responded on 26 August 2024. The response contained a large bundle of documents from the applicant’s representative. The delegate referred to the visa applicant’s responses in summary form at p 5 of the Decision. The Tribunal has also had regard to that information, the documents and the applicant’s responses.Tribunal process The AAT received the application lodged 29 August 2024. The issue for review by the Tribunal is whether the ground for cancellation under s 101(b) is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of his passport as identification, and a copy of the Department’s visa cancellation decision with the application. The applicant provided the AAT with notification of his representative, Mr Arun Singhal, from the Big Brother Group who continues to represent the applicant before the ART.

Ratio Decidendi

Legal Principle Established

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