Rani (Migration)

Rani (Migration) [2022] AATA 1039 (7 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Poonam Rani
REPRESENTATIVE:  Mr Imran Nawaz Warraich
CASE NUMBER:  2116595
HOME AFFAIRS REFERENCE(S):          BCC2021/1747877
MEMBER:Mary Sheargold
DATE:7 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 07 April 2022 at 4:22pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – incorrect answers in visa application – secondary applicant known by another name – undeclared change of identity details – 3-year exclusion period elapsed at time of application – applicant couple re-uniting – jeopardising a future business partner – contribution to the community – skills shortage for chefs – staff employed – decision under review set aside
LEGISLATION
Migration Act 1958, ss 48, 101, 107, 109, 189, 198
Migration Regulations 1994, r 2.41; Schedule 4, PIC 4014
CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Poonam Rani is a Hindu woman who was studying in Melbourne alongside Supinder Singh Toor in 2008. The couple, known to friends as ‘Supi’ and ‘Love’, began a relationship and were living together at the time Supinder Singh Toor was unsuccessful in securing a further student visa to continue his studies in Australia. In February 2013, Supinder Singh Toor returned to India. Following an unsuccessful bid to return to Australia on a temporary work visa, Supinder Singh Toor decided to formally register a change of name to honour his adoptive father, his uncle, and he obtained a new passport. He is now known as Pardeep Singh Pattar.
Poonam Rani returned to India in October 2013 and the couple married. Their parents consented to their interfaith marriage on the basis that they would establish their lives in Australia where it was possible for them to live together without prejudice. Some days after the couple’s wedding, they registered their marriage. At this time, Poonam Rani became aware that her now husband had not only changed his name, but also his date of birth.
The couple wished to establish their new life in Australia. Poonam Rani returned to Melbourne to continue her studies. She applied to sponsor her husband as a dependent on her student visa in December 2013; this application was refused, but when she applied again in May 2014, the application was approved. Pardeep Singh Pattar arrived in Melbourne on 21 May 2015 and has remained in Australia since. Subsequently, Poonam Rani has been the primary visa holder of both Subclass 457 and Subclass 186 visas, with Pardeep Singh Pattar her dependent. In each visa application made, the couple declared that Pardeep Singh Pattar had not been known by any other name. In October 2020, the couple applied for Australian citizenship. It was at this time that forensic examination of Pardeep Singh Pattar’s photographs revealed an identical likeness to the Australian government’s records for Supinder Singh Toor.
On becoming aware of Pardeep Singh Toor’s changed identity that had not been declared, the Department took steps to cancel Pardeep Singh Pattar’s Subclass 186 visa, and later took steps to cancel Poonam Rani’s Subclass 186 visa. Section 109(1) of the Migration Act 1958 (Cth) (the Act) was invoked and the basis for cancelling their visas is the provision of incorrect answers in their Subclass 186 visa application form, breaching s.101(b) of the Act.
The Tribunal is tasked with determining whether there was non-compliance by Mrs Rani and if so, to decide whether or not to exercise its discretion to cancel her visa. Mrs Rani agrees that there was non-compliance by providing incorrect answers to multiple questions on their Subclass 186 visa application and admits to having provided those incorrect answers in order to circumvent Mr Pattar’s bar from entering Australia. On its face, this is a simple decision: Mrs Rani took deliberate and repeated steps to avoid her husband’s 3 year exclusion period under PIC 4014, and continued her deception of the Australian government across multiple visa applications.
However, in weighing up the factors the Tribunal must consider when determining whether or not to exercise its discretion to cancel Ms Rani’s visa, the Tribunal finds itself in the difficult position of potentially jeopardising the future of Mr Pattar’s business partner and his family, as well as the employees of their suburban Melbourne restaurant business. For the reasons outlined below, having weighed up all the factors the Tribunal is obliged to consider, the Tribunal has decided to set aside the delegate’s decision, and substitute a decision not to cancel her Subclass 186 visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, 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.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s.101(b) of the Act by virtue of the provision of incorrect answers. Mr Pattar, and Mrs Rani by implication as the primary applicant, answered “No” to the following questions on their Subclass 186 visa application in relation to Mr Pattar:
·Is this family member currently, or have they ever been known by any other names?
·Has any applicant ever been removed, deported or excluded from any country (including Australia)?
They also provided incorrect answers to the request for details of all countries where Mr Pattar had spent a total of 12 months or more in the past 10 years or since turning 16 years of age, and failed to declare his previous travel to Australia in answer to the question of whether, in the last 10 years, he had visited any countries outside his usual country of residence.
Despite taking a different approach in responding to the Department’s Notice of Intention to Consider Cancellation, at the Tribunal hearing on 31 March 2022, Mrs Rani was upfront, admitting not only to her provision of incorrect answers but also to the reason they provided incorrect answers: they knew Mr Pattar would not be granted a visa to enter and remain in Australia if he had answered all of the questions correctly. Mrs Rani now accepts that she has breached the requirements of s.101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by Mrs Rani 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 content of the genuine document (if any)
·     whether 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 circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
Mrs Rani accepts that the correct information that should have appeared on her and Mr Pattar’s combined visa application is substantially different from the information they actually provided. She acknowledges that they should have declared he had been known by another name, and that he had been to Australia under his previous identity. Mrs Rani told the Tribunal she genuinely regrets her actions, and that she went along with her husband’s request to complete the forms in the way they did because she had been raised to believe that a husband was always right and you must obey your husband. When questioned as to whether she had contemplated waiting until his exclusion period under PIC 4014 had elapsed, she could not provide a satisfactory justification.
Given the substantial variance between the correct information and the information the applicants actually provided the Department, the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The content of the genuine document (if any)
The visa cancellation is not being considered on the grounds of provision of a bogus document, and so the Tribunal is unable to give this consideration any weight either in favour or against visa cancellation.
Whether 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 Tribunal notes this is a difficult consideration to weigh up, because Mr Pattar’s 3 year exclusion period under PIC 4014 would have elapsed 3 and a half years prior to the lodgement of this visa application. Indeed, Mrs Rani’s Subclass 457 visa, applied for on 26 August 2016, may well have been granted with him as a dependent had he declared the truth regarding his previous name and travel history.
There is no reason to assume Mr Pattar would have continued to be refused entry to Australia on the cessation of his 3 year exclusion period. The Tribunal notes that his grant of a dependent student visa in 2015 may not have occurred had they provided the Department with the correct answers to all the questions on that application. However, this is not the visa grant nor immigration clearance the subject of this review.
Given the 3 year exclusion period under PIC 4014 had elapsed even prior to the application for the Subclass 457 visa that gave rise to the application for this Subclass 186 visa in the Temporary Residence Transition Stream, the Tribunal does not find it appropriate to give weight to this consideration in favour of cancelling the visa. It is not appropriate for the Tribunal to make assumptions as to how the Minister or their delegate arrived at their decision to grant Mrs Rani a Subclass 186 visa where had the correct information been provided in relation to Mr Pattar, as a matter of law, the applications may still have been approved.
Given Mrs Rani demonstrated that she met the primary criteria for grant of a Subclass 186 visa, the gives this consideration a little weight against cancelling the visa.
The circumstances in which the non-compliance occurred
Mrs Rani’s evidence is that she learned the truth regarding the extent of her husband’s deceptive efforts to obtain a new identity only after their marriage was formalised. She stated that she had been raised to obey her husband and to respect him as equivalent to a god. It is clear that Mrs Rani was not comfortable with the position she found herself in. However, she did not take any steps to mitigate the risks to her future in Australia by encouraging Mr Pattar to remain in India until his exclusion period ended, nor did she take any steps to relocate to India for that time so they could begin their married life together.
Mrs Rani admits that on each visa application made since Mr Pattar changed his name, they have provided incorrect answers to questions. The Tribunal accepts that Mrs Rani felt obliged to obey her husband, and agrees with Mrs Rani that Mr Pattar was someone she would not be likely to be able to marry and live with if they returned to India.
It is clear to the Tribunal that Mrs Rani was complicit with Mr Pattar in taking methodical, deliberate and repeated steps to avoid the Australian government enforcing the 3 year exclusion period against him. Therefore, the Tribunal gives this consideration significant weight in favour of cancelling the visa.
The present circumstances of the visa holder
Mrs Rani has lived in Australia for the majority of the past 14 years, she has assimilated into Australian society and the Australian way of life. Along with her husband, she has developed deep ties in the Sikh community (despite her Hindu religion), the broader Indian-Australian community, and the hospitality sector. She and Mr Pattar have purchased a home and are repaying their first mortgage. In October 2020, he acquired a 50% shareholding and directorship in the restaurant business where he had worked for many years. His business partner, like Mr Pattar, is dependent on the success of this business to secure his family’s livelihood. Mrs Rani gave evidence that they have delayed plans to start their family, wishing to ensure their future in Australia was secure first.
The Tribunal notes that but for their providing incorrect answers to the application for Mr Pattar to travel to Australia as Mrs Rani’s dependent spouse in 2014, they would not have become so established in his life in Australia. However, the circumstances leading to the grant of that dependent student visa are not under scrutiny; rather, it is the circumstances leading to the grant of their permanent residency visa in 2019.
During the Covid-19 pandemic, Mrs Rani reduced her hours as Restaurant Manager at their restaurant business, completed her Certificate III as a health worker, and secured employment as a PSA at The Northern Hospital. She was in demand as a casual employee, especially during the recent Omicron wave of Covid-19 that has seen many hospital staff furloughed for periods of time.
However, since her visa was cancelled, Mrs Rani has been unable to obtain any work rights, and has become depressed and withdrawn. At the hearing, she told the Tribunal she often cannot see the point in getting dressed in the morning. It is clear that she is adversely affected by the decision to cancel her visa.
Having considered the evidence, the Tribunal gives this consideration some weight against cancelling the visa.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Pt 2, Div 3 of the Act
The Tribunal has reviewed Mrs Rani’s representative’s statements made in response to the Notice of Intention to Consider Cancellation issued prior to the delegate’s decision to cancel the visa and notes they are unhelpful at best and a hindrance to Mrs Rani at worst. Mrs Rani has openly departed from the views her representative espoused in the response to the NOICC and has shown deep contrition regarding her conduct.
The Tribunal appreciates Mrs Rani’s candour and her admissions that she did not behave appropriately when she chose to provide the Department with incorrect answers on multiple visa applications. She has accepted that the non-compliance occurred and has asked the Tribunal to focus on weighing up her circumstances against her previous misconduct to make a fair assessment of his review application. She has not shied away from, or attempted to excuse or mask, her previous poor decisions.
Considering Mrs Rani’s behaviour during the review process and the contrition she has shown for her actions, the Tribunal gives this consideration a little weight against cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence that there are other instances of non-compliance by Mrs Rani known to the Minister. Therefore, I give this factor a little weight against cancelling the visa.
The time that has elapsed since the non-compliance
Mrs Rani and Mr Pattar provided incorrect answers to questions on multiple visa applications as well as their applications for Australian citizenship. They have demonstrated a sustained, methodical approach to his non-compliance and clearly did not intend to declare Mr Pattar’s former identity to the Australian government at any point. Given this pattern of behaviour, the Tribunal gives this consideration a little weight in favour of cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to indicate that Mrs Rani has breached any laws since the non-compliance occurred. The Tribunal gives this consideration some weight against cancelling the visa.
Any contribution made by the visa holder to the community
At the hearing, Mrs Rani told the Tribunal that she and Mr Pattar regularly volunteer in serving food at their local Sikh temple in Craigieburn and that they provide the temple kitchen with groceries to cook meals on a weekly basis.
Of significance, Mrs Rani worked for many years as the Restaurant Manager and since October 2020, Mr Pattar is the director, 50% shareholder, and Head Chef at The Moor’s Head restaurant in Thornbury. The hospitality sector in Melbourne has been severely impacted by the Covid-19 pandemic and the protracted lockdown periods in Victoria during 2020 and 2021. Mrs Rani confirmed that whilst her husband is listed as the shareholder, they share the fiscal interest in this business and make decisions about the business together.
Mrs Rani has provided the Tribunal with a statement from the business’s co-owner, David Figliomeni. In summary, the evidence clearly suggests that without Mr Pattar in Australia running the kitchen, the restaurant will have to close. Mr Figliomeni has indicated his family’s financial dependence on the success of this business, and cites they provide jobs for 15 staff on a mix of full-time, part-time, and casual bases. Mrs Rani has provided other letters of support outlining the importance of their business to the hospitality sector in Melbourne’s northern suburbs.
In the context of the known skills shortage for chefs in Australia following the Covid-19 pandemic, as well as the known shortage of staff available to work in the hospitality sector in Melbourne, the Tribunal accepts there is a very real prospect that the business would fail if Mr Pattar and Mrs Rani were to leave Australia. The Tribunal gives significant weight to the evidence from Mr Figliomeni who cites he is unable to stretch himself further financially to buy out Mr Pattar and Mrs Rani, and notes that his wife and daughters are already working shifts in the restaurant without fair remuneration in order to keep the restaurant open and to keep other staff employed.

Given the economic uncertainty in Melbourne’s hospitality sector, the Tribunal is persuaded that it is in the community’s best interests to maintain the employment of the staff at The Moor’s Head and to ensure this restaurant continues to operate, and accepts this is unlikely to be possible if the visa is cancelled.
Therefore, the Tribunal gives this consideration significant weight against cancelling the visa.
Whether there are persons in Australia whose visa would, or may, be cancelled consequentially
There would be no consequential cancellations arising if the applicant’s visa is cancelled. Therefore, the Tribunal gives this consideration a little weight in favour of cancelling the visa.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations if the applicant’s visa was cancelled. As noted above, the applicant and her husband have delayed starting a family and so there are no children whose interests need to be considered. Mrs Rani has told the Tribunal that while it would be difficult for her to live with Mr Pattar in India given their different religions, family statuses and language barriers between themselves and their parents, she does not fear she will come to harm if she returns to India.
The Tribunal gives this consideration a little weight in favour of cancelling the visa.
Whether there are mandatory legal consequences to a cancellation decision
If Mrs Rani’s visa is cancelled, she may be detained under s.189 of the Act and be liable to be removed from Australia under s.198 of Act as she would no longer hold a valid visa. However, it would be open to her to return to India to mitigate the possibility of being placed in immigration detention. The Tribunal does not consider that there is potential for her to be detained indefinitely.
However, she may be subject to s.48 of the Act, preventing her from applying for further visas while in Australia, and she may be affected by PIC 4013, limiting the grant of a new temporary visa for a specified period. Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.
Any other relevant matters
The Tribunal has not identified any other relevant matters that warrant consideration.
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. However, 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 186 - Employer Nomination Scheme visa.
Mary Sheargold
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.

[2022] AATA 1039

7 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice