Salve (Migration)

[2021] AATA 3914

Salve (Migration) [2021] AATA 3914 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shivali Balaji Salve

CASE NUMBER:  2014366

HOME AFFAIRS REFERENCE(S):          BCC2019/160405

MEMBER:Kira Raif

DATE:19 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 19 July 2021 at 12:38pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – Software Engineer – ground for cancellation – incorrect information in visa application – employment history – bogus document – employment reference – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

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 489 - Skilled - Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in January 1991. She was granted the Skilled Regional State or Territory Subclass 489 visa in March 2018. In August 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view the applicant did not comply with ss. 101 and 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in September 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer Mr Supe. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. 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 and s. 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made the application for the Skilled Regional State or Territory (Subclass 489) visa in December 2017. In that application the applicant nominated the occupation of Software Engineer and had indicated that she had obtained a skills assessment by the Australian Computer Society (ACS) in April 2016. With respect to her employment, the applicant stated that between 1 June 2012 and 30 November 2015 she worked as a software engineer at Kunal Infotech Pvt Ltd in India and provided a description of her duties. The applicant included with the application the ACS Skills assessment issued on 15 April 2016 which indicated that the applicant’s skills were assessed as suitable for the occupation of Software Engineer (ANZSCO 261313) on the basis of her Bachelor of IT from University of Ballarat, completed in November 2011 and her employment as a software developer at Kunal Infotech Pvt Ltd. The applicant was granted the Subclass 489 visa on 19 March 2018.

10. The primary decision record indicates that the Department received information that the applicant may have paid for a bogus employment reference. The ACS provided the Department with the reference letter from Kunal Infotech Pvt Ltd and advised that this is all they received as evidence of the applicant’s employment. The employment reference was signed by the chairman Sudhir Supe and refers to the applicant’s employment on a full-time basis as a software developer at Kunal Infotech, Nagpur between 1 June 2012 and 30 November 2015.

11. The primary decision record indicates that during that  period, the applicant held Student visas and a Subclass 485 visa. The primary decision record sets out the applicant’s movement during the relevant period as follows:

    Arrival  Departure
               08/03/11  04/11/12

    05/12/12  13/02/14

    10/03/13  19/07/15

    13/08/15  30/05/16

12. The delegate noted that during the period of her claimed employment, the applicant had spent the first five months in Australia and not in India. The delegate noted that the applicant had spent 63% of her time in Australia and only 15 out of 41 months in India. As a result, the delegate found that the applicant did not work for Kunal Infotech and that the employment reference is a bogus document.

13. In her response to the NOICC the applicant claims, essentially, that after completing her studies in Australia, she was unable to find a job in Australia and looked for a job in India. She obtained a job with Kunal Infotech and she worked remotely, which is generally accepted by the Department. The applicant states that she did work for Kunal Infotech as a software developer. She did not rely on that employment to claim points, as she was not confident about the department’s policy on online work while the ACS guidelines were clear. (The Tribunal is mindful that the applicant did refer to her employment at Kunal Infotech in the visa application form and therefore gave that answer when completing the form. Whether or not she relied on such employment in claiming points is then irrelevant when determining whether there was a breach, an answer would be incorrect irrespective of whether it was relevant to a visa criterion.) The applicant submits that she did work for Kunal Infotech and did not provide incorrect answers, nor a bogus document.

14. The applicant states that she was paid INR13,000 in cash, which was given to her father in India and as her salary was less than the basic exemption limit, she did not file tax returns in India. The applicant states that she worked for Kunal Infotech for the entire time from Australia. The applicant states that the company has closed and she cannot obtain more documents other than the letter from her employer. The applicant included with her submission a further letter from Sudhir Supe, dated August 2020, in which he confirmed that the applicant worked for the business online from Australia. The applicant included a Salary Certificate confirming the payment arrangements and a letter from an accountant confirming that the applicant was not required to pay tax. The applicant repeated these claims in her written submission to the Tribunal of 24 June 2021.

15. The Tribunal took oral evidence from the applicant and Mr Supe. While the Tribunal found Mr Supe’s evidence largely unhelpful (he claims to have had no involvement in the technical side of operations and did not appear to be familiar with the applicant’s day to day employment), the Tribunal found the applicant to be a generally credible witness. She provided detail of the work she had carried out, the types of projects, her interactions with other staff and the nature of various arrangements during her employment. The Tribunal acknowledges the applicant’s explanation that when she made the application for the skills assessment to the ACS, minimal evidence was required and an employment reference was sufficient to obtain a skills assessment and because she did not rely on her employment to gain points, she did not require to hold additional evidence of her employment to provide to Immigration. The applicant states that now due to the passage of time, much of the documentary evidence is no longer available. Thus, while the Tribunal acknowledges the delegate’s concerns about the paucity of evidence relating to the applicant’s employment, the Tribunal considers the applicant’s explanation for lack of evidence to be plausible.

16. The delegate’s findings are based, largely, on the fact that the applicant was in Australia when she claims to have been working for a company in India and also because she failed to mention that her work was carried out online. The applicant explains that it was an acceptable form of employment for ACS and that her answers on the application form and the employment reference make it clear that the company was located in India. The Tribunal acknowledges that the applicant’s answer on the application form in relation to her employment does specify the company’s location as India so it does not appear that the applicant sought to withhold that information or that she was deliberately misleading about the nature of her employment when making the visa application or when applying for the skills assessment. The applicant also denies the allegation that she had paid someone for the employment documents and given the vague nature of that allegation and the Tribunal’s inability to test the information, the Tribunal determined that it should be given no weight.

17. The Tribunal has some concerns about the applicant’s ability to maintain full-time employment while undertaking full-time study (the applicant claims her study was in excess of 20 hours a week). The applicant explains she worked about 30 hours a week, which is considered full-time employment and the Tribunal acknowledges that it is possible.

18. The Tribunal acknowledges that there is unsatisfactory evidence relating to the applicant’s employment and lack of documentary evidence to support her claims. However, the Tribunal considers the applicant’s explanation to be plausible and, importantly, the Tribunal gives weight to the applicant’s oral evidence concerning the nature of her employment, that was not available to the delegate. Overall, the Tribunal has formed the view that there is insufficient basis to form a positive satisfaction that the applicant did not work at Kunal Infotech as claimed. Importantly, any concerns or perceived deficiencies in evidence are not sufficient to form a positive basis for the visa to be cancelled. It is not for the applicant to disprove any allegations or concerns about her employment. The Tribunal has formed the view that there is not enough evidence for a positive finding that the applicant had provided incorrect answers or a bogus document in her application and that she had breached s. 101 and s. 103 of the Act.

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.

    Conclusion

20. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member