Ren (Migration)

[2022] AATA 3987

Ren (Migration) [2022] AATA 3987 (10 November 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xinwei Ren

REPRESENTATIVE:  Mr Bo Li (MARN: 0853061)

CASE NUMBER:  2111484

HOME AFFAIRS REFERENCE(S):          BCC2020/2761505

MEMBER:Michael Cooke

DATE:10 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 November 2022 at 1:15pm

CATCHWORDS
MIGRATION – cancellation – Residence (Return) (Class BB) – Subclass 155 (Five Year Resident Return) – incorrect information provided in previous nomination application – intended address on incoming passenger card some distance from nominated workplace – information provided by sponsor in nomination application, not by applicant in visa application – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 107A, 108(b), 109(1)
Migration Regulations 1994 (Cth)

CASE
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
SZEEM v Minister for Immigration (2005) 27 FMCA 19

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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) of Subdivision C of the Migration Act 1958. 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. The applicant indicated that she did not intend to appear before the Tribunal on the scheduled day to give evidence and present arguments. She informed that her representative would be attending.

4. The applicant was represented in relation to the review. The applicant subsequently informed that he also would not be attending the hearing. Thus, there was no hearing.

5. The representative tendered a submission to the Tribunal as follows:

   Fact

6. The information on the Notice of intention to consider cancellation under 109 of the Migration Act 1958 provides the following non-compliance evidence

   “Based on this information, it appears that you have provided incorrect information to the department in your RSMS Nomination… Therefore, your Resident Return (subclass 155) is under consideration for visa cancellation”.

7. The Nomination is not lodged by the applicant. The nomination is lodged by the sponsor Fosjong Pty Ltd.

   Legislative requirements

   “…S109(1) sets up in paragraph (a) an initial essential precondition before the Minister at first instance “may cancel the visa”. That is, the Minister must as a first step decide in terms of s.108(b) whether there was non-compliance by the visa holder in the way described in the notice” under s.107. The Minister has no power to cancel a visa under s.109 by reaching satisfaction that there was non-compliance in some other “way” or “way” which were not “described in the notice”. The discovery of other “way” of “describing” the non-compliance may not be used a basis for cancellation in procedure initiated by the s.107 notice.”

   “… I consider that the Minister’s contention that the Tribunal can decide whether there has been a non-compliance with s.101 unfettered by s.108(b) should be rejected.”2

   “I consider that I am bound by the above opinions expressed by Allsop J upon which decided in Saleem, and also respectfully agree with them. They conclude that the Tribunal will not validly exercise its jurisdiction in a review of a s.109 cancellation decision unless it directs its findings at the particulars of non-compliance which were given in the initiating notice. “3

   Discussion of legislative requirement

   Following the reason that “… I consider that the Minister’s contention that the Tribunal can decide whether there has been a non-compliance with s.101 unfettered by s.108(b) should be rejected,”4

   Tribunal can only decide whether there has been a non-compliance contained in S107 notice.

   The findings there is incorrect information on the nomination where it is not part of Ms. Ren’s visa application cannot be the ground to find Ms. Ren has provided incorrect information to Department. Ms. Ren does not breach s101, simply because the information on the nomination form was not provided by Ms. Ren to the Department.

   S101 requires visa applications to be correct. Department has no information on the initiating notice (NOICC) suggests that the incorrect answers in the nomination are given or provided in the visa application.

   Therefore, if Tribunal directs its findings at particulars of non-compliance which were given in the initiating notice, it will find the incorrect information is not provided by the visa applicant in her visa application.

   1 SZEEM v Minister for Immigration (2005) 27 FMCA 19.

   2 Ibid 25.

   3 Ibid 32.

   4 Ibid 25.

   Conclusion

   As Tribunal cannot possibly find that the nomination application is from the visa applicant, the incorrect information in the RSMS nomination which given in the initiating notice cannot be the ground for S109 cancellation. “The Tribunal’s only power in relation to a decision made without substantive power was to set aside that decision (c.f. Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW)(1978) 1 ALD 167 at 176)”

8. A further clarifying submission was issued by the representative as follows:

   Fact

   1. information on the nomination form

   The information on the Notice of intention to consider cancellation under 109 of the Migration Act 1958 provides the following non-compliance evidence

   “Based on this information, it appears that you have provided incorrect information to the department in your RSMS Nomination… Therefore, your Resident Return (subclass 155) is under consideration for visa cancellation”

   The Nomination is not lodged by the applicant. The nomination is lodged by the sponsor Fosjong Pty Ltd.

   2. information on the incoming passenger card. The address is an intended address at the time of client fill the incoming passenger card. It is not the address that requires the client to live in fact after entering Australia.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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.

12. 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.

13. The applicant has tendered the delegate’s decision record and the NOICC (Notice of Intention to Consider Cancellation).

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

14. 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) in the following respects: the applicant provided incorrect information to the Department in her approved RSMS nomination when she has stated that her work location was 2650, her specified location of employment was 170 Hammond Avenue, WAGGA WAGGA, NSW, 2650 and when she answered Yes in acknowledgement of the declaration regarding the likelihood of visa cancellation if the visa holder does not commence work in the nominated position within six months or continue to work in the nomination position for at least two years.

15. The applicant’s representative has claimed that:

    The information on the Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958 provides the following non-compliance evidence

    “Based on this information, it appears that you have provided incorrect information to the department in your RSMS Nomination… Therefore, your Resident Return (subclass 155) is under consideration for visa cancellation”

    The Nomination is not lodged by the applicant. The nomination is lodged by the sponsor Fosjong Pty Ltd.

    2. information on the incoming passenger card

    The address is an intended address at the time of client fill the incoming passenger card. It is not the address that requires the client to live in fact after entering Australia.

    History

16. On 31 July 2015 the applicant lodged an application for a Regional Skilled Migration Scheme (subclass 187) visa having been nominated by FOSJONG PTY LTD to work in the occupation of Customer Service Manager. The related nomination (as stated on page one of the visa application form) was lodged on 3 February 2015. In the Application for Employer Nomination for a Permanent Appointment form it was stated that the applicant’s work location postcode was 2650, her position was Customer Service Manager and that her address of employment was 170 Hammond Avenue Wagga Wagga New South Wales 2650. The applicant also responded Yes to the RSMS declaration acknowledging that any resulting visa may be cancelled if holder does not commence work within six months or does not continue to work in the nominated position for at least two years.

17. Subsequently, the applicant was granted a Regional Skilled Migration Scheme (subclass 187) visa on 4 March 2016. Further information later became available to the Department after the grant of her RSMS visa. This indicated that the applicant did not commence work in her nominated position of Customer Service Manager with her nominating employer FOSJONG PTY LTD within six months of the grant of the visa.

18. Following receipt of this information a statement was provided by David FOSTER, the co-owner of Fosjong Pty Ltd. It informed that the applicant never commenced work in the role of Customer Service Manager at Fosjong Pty Ltd.

19. On the incoming passenger card which the applicant completed on 31 October 2016 she provided the business address for Fosjong Pty Ltd (trading as Active Print) in Wagga Wagga as her intended address. According to open-source information available to the delegate this is an office building in an industrial estate. It is not a residential address.

20. Of further interest to the Department was that the applicant’s intended addresses which were entered into all of her incoming passenger cards - within two years of the grant of her RSMS visa. All of them included addresses in the Sydney suburbs of Lindfield and Roseville in New South Wales. Only one address listed corresponded with Wagga Wagga as the postcode (2650). Furthermore, the address of 4 Haig Street, ROSEVILLE, NSW, 2069 was provided as the applicant’s intended address in all of the applicant’s incoming passenger cards in 2018 and 2019. It was also the same residential address provided in her Resident Return visa application which was granted on 1 December 2020. The Tribunal is satisfied that the addresses in both Lindfield and Roseville are over four hundred and fifty kilometres from the location of her nominated employment (Wagga Wagga) and beyond a reasonable commuter distance.

21. The applicant responded to the Departmental Notice on 19 August 2021. In her reply she did not in her response, subsequently notify the Department of any circumstances surrounding the non-compliance as elaborated in the Notice. Her response had focused solely on reasons why her visa should not be cancelled under s.109 of the Act. The representative has done likewise in submissions to the Tribunal (see above).

    The findings there is incorrect information on the nomination where it is not part of Ms Ren’s visa application cannot be the ground to find Ms Ren has provided incorrect information to Department. Ms Ren does not breach s.101, simply because the information on nomination form was not provided by Ms Ren to the Department.

22. The Tribunal notes that the applicant’s Resident Return (subclass 155) visa is under consideration for visa cancellation under s101(b) of the Act using the relevant grounds set out under s.107A which states that ‘possible non-compliance in connection with a previous visa may be grounds for cancellation of the applicant’s current visa’.

23. The Tribunal is not satisfied on the evidence before it that the applicant has provided incorrect information to the Department in her visa application. The approved RSMS nomination which stated that her work location was 2650 and her specified location of employment was 170 Hammond Avenue, WAGGA WAGGA, NSW, 2650 was information submitted by the nominator.

24. The Tribunal is also aware that it was the nominator and not the applicant who answered ‘Yes’ in the RSMS nomination acknowledgement of the declaration regarding the likelihood of visa cancellation ‘if the visa holder does not commence work in the nominated position within six months or continue to work in the nomination position for at least two years’. The Tribunal finds these answers were presented by the nominator in the approved RSMS nomination. They were not presented by the applicant in her subclass 187 visa application.

    Conclusion on non-compliance

25. The applicant responded to the NOICC through her representative. He has informed the Tribunal that the grounds for cancellation do not hold water.

    The findings there is incorrect information on the nomination where it is not part of Ms Ren’s visa application cannot be the ground to find Ms Ren has provided incorrect information to Department.

    Ms Ren does not breach s101, simply because the information on nomination form was not provided by Ms Ren to the Department.

    The fact that Ms Ren never worked in Fosjong Pty ltd has nothing to do with her intended address when she entered Australia. We concede that to live in an industrial estate was not reasonable. But there is no requirement for the visa holder to be a reasonable person. Even though her intention may be unreasonable, however, there is no evidence to show that her intended address was not her intention at the time of filling the incoming card. There is no evidence to show there is any utility to provide incorrect information on the incoming passenger card. Her intended address may be wrongly chosen because of her misunderstanding of the nature of the place or her misbelief that the industrial estate was a proper place to live. The fair conclusion is the intended address is unreasonable but there is not sufficient evidence to disapprove her intention to be correct in 2017.

    Therefore, there is not sufficient evidence for the decision maker to satisfy the ground of incorrect intended address being established.

    S101 requires visa applications to be correct. Department has no information on the initiating notice (NOICC) suggests that the incorrect answers in the nomination are given or provided in the visa application.

    Therefore, if Tribunal directs its findings at particulars of non-compliance which were given in the initiating notice, it will find that incorrect information is not provided by the visa applicant in her visa application.

    Conclusion

    As Tribunal cannot possibly find that the nomination application is from the visa applicant, the incorrect information in the RSMS nomination given in the initiating notice cannot be the ground for S109 cancellation. And there is not sufficient evidence to satisfy the ground that the intended address was incorrect.

    “The Tribunal’s only power in relation to a decision made without substantive power was to set aside that decision (c.f. Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW)(1978) 1 ALD 167 at 176)”

    Conclusion on non-compliance

26. The Tribunal having revisited the case (which concerns cancellation of a subclass 155 Resident Return visa) and agrees with the synopsis of the applicant’s representative.

27. It finds that there is no evidence the applicant has provided incorrect information in her application for a subclass 187 visa. The RSMS nomination information given in the initiating notice cannot be the ground for a s.109 cancellation.

28. The Tribunal has decided that there was no 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

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Michael Cooke
    Senior 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.