SANDHU (Migration)

SANDHU (Migration) [2018] AATA 5489 (13 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manpreet Singh SANDHU
CASE NUMBER:  1726405
DIBP REFERENCE(S):  BCC2016/3723809 BCC20163723809
MEMBER:Mr S Norman
DATE:13 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Statement made on 13 November 2018 at 3:35pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Class RN) visa – Subclass 187 – cook – taxi driver – intentionally provided incorrect information on application – two jobs – denied providing incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 99, 101, 109, 107, 189, 198
Migration Regulations 1994, rr 2.41, 5.19, PIC 4013

CASES
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The delegate cancelled the visa pursuant to s.109 of the Act, as the applicant had been determined to have provided incorrect information in their Regional 187 permanent visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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 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 of the Act (as set out below).
The applicant lodged a substantial number of documents in support of this case. Though I have not expressly referred to each herein, the Tribunal has had regard to all of same prior to drafting this decision.
The applicant arrived in Australia on 29 November 2008 as the holder of a Student visa[1]. On 12 April 2016, he was granted a Regional Employer Nomination (Class RN) (subclass 187) visa (the Regional 187 visa). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 15 May 2017, after setting out s.101 of the Act, the applicant was advised that by operation of s.99 of the Act, information that a noncitizen 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, the person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under the Act in relation to the noncitizens application for a visa is for the purposes of section 100, 101(b), 102(b), 104 and 105, taken to be an answer to a question in the noncitizens application form, whether the information is given or provided orally or in writing and whether at interview or otherwise.
[1] Tribunal – folio 8.
The NOICC (materially) stated that on 11 December 2015, in response to questions asked in the Regional 187 visa application form, the applicant provided the following information:
· under “Employment History”, when asked’ has the applicant been employed in the last 10 years?’, the applicant responded ‘yes’
· when asked to give details of the employment undertaken in the last 10 years, the applicant provided the following information:
·Cook (position) – Thirty Sixty Cafe & Restaurant (employer name) – Australia (country) - from 28 November 2014 to 11 November 2015. After providing a description of duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘yes’.
·Cook (position) - Miss India Takeaway (employer name) – Australia (country) – from 13 March 2014 to 30 June 2014. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘yes’.
·Cook (position) - Miss India Takeaway (employer name) – Australia (country) – from 10 December 2013 to 12 March 2014. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘yes’.
·Taxi driver - Supreme Taxis (employer name) – Australia (country) – from 25 February 2013 to 26 November 2013. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘no’.
·Nut grower - Obie Plantation (employer name) - Australia (country) – from 1 October 2012 to 10 February 2013. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘no’.
·Taxi driver – Supreme Taxis (employer name) – Australia (country) – from 2 December 2010 to 14 November 2011. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘no’.
·Bell injector - Terry Hampson Farm (employer name) – Australia (country) - from 6 February 2009 to 20 November 2010. After providing a description of the duties, when asked “is this the employment related to the nominated position?”, the applicant responded ‘no’.
As discussed below, material parts of the above information was found not to be complete and correct in every detail correct. That being said, the delegate noted the applicant authorised the Australian Government to make any necessary enquiries to determine his eligibility for permanent stay in Australia, and use any information supplied in this application for that purpose. The delegate also noted the applicant declared that the position to which the application relates was a position under r.5.19 in accordance with a Labour Agreement.
Next the applicant declared he had provided complete and correct information in every detail on the visa application form and on any attachments to it. The applicant also declared he would inform the Department in writing immediately as he became aware of a change in circumstances (including a change of address) or if there is any change relating to information he had provided in the visa application while it is being considered.
The delegate noted the applicant also declared he understood his visa may be cancelled if the nominated employment was not commenced within six months of arriving in Australia, or six months after the visa is granted in Australia, or if the position is left within two years of commencement of employment with the nominated employer. Further, the delegate noted the applicant declared he understood that if he, any family members included in the application or third parties acting on behalf of him, provide (or had provided in a previous application) misleading information, or bogus documents either knowingly or otherwise, the visa application would be refused and the applicant subject to a three-year bar in relation to visas to which the fraud criterion applied. Also that any visa granted may be cancelled.
Also lodged was a “confirmation of employment” letter dated 29 May 2017.[2] That indicated the employer had sponsored the applicant for a temporary visa and he had commenced work on 18 January 2015; that he was employed full-time working on average, 38 hours a week, between 18 January 2015 and 1 February 2016; and that they subsequently nominated the applicant for a permanent visa on 12 April 2016; and he had commenced working with the nominator pursuant to the permanent contract of employment in June 2016. It was said the applicant remained employed at the sponsor’s restaurant (the ‘Thirty Sixty Cafe’ or the ‘3060 Cafe’).
[2] Tribunal – folio 50.
In a telephone interview with an officer from the Australian Border Force on 29 September 2016 (after the Regional 187 visa was granted on 12 April 2016), the applicant said he worked at the Thirty Sixty Cafe and Restaurant, though he also claimed he had some breaks in employment for two months (being March to April 2015 to travel around Australia), and three weeks (in May 2015 to travel to India). He also said he had ceased driving taxis in 2014 before his Temporary Work (Skilled) class (UC) (subclass 457) visa was granted and he began driving taxis again in May 2016 after his Regional 187 visa had been granted (12 April 2016). The applicant was recorded as claiming he only worked with Cairns Taxis (which the Tribunal understood was Supreme Taxis) as a second form of employment and that he only worked limited hours and occasionally on Sundays.
The applicant subsequently conceded he had been contacted in September 2016, and was asked about his work for Cairns Taxis. He said he “did not tell much about his work as he was worried … they were a scam caller… The call was from a mobile phone and he thought … if it really was immigration … they would call him from a landline or a private number”.[3] Evidence of ‘Scams targeting migrants’ was also lodged.[4] Advice from the Australian Competition & Consumer Commission dated 31 May 2017 was lodged, and that advised inter alia persons recently returning from India were particularly at risk (and the applicant had last returned from India in May 2016). The advice also said that if the target was threatened (ie by being told to hand themselves in to police) they should disconnect the phone call; that money should never be sent; and an Internet address was provided to enable such persons to “keep up with recent scams”. The Tribunal understands it need not make an applicant’s case for them, but the Tribunal has no information from the applicant or his agent that (ie) the applicant contacted the Department to establish whether the 29 September 2016 phone call was genuine.
[3] Tribunal – folio 7.
[4] Department – folio 179.
The delegate noted that shortly after the abovementioned telephone contact (on 6 October 2016), information was received by the Department from Cairns Taxis that the applicant had been employed by them in the period 7 March 2015 to 11 April 2016 (being the day prior to the grant of the Regional 187 visa). It was claimed the applicant had worked 215 taxi shifts (in that 11 month period) with an average duration of 10 hours and 25 minutes per shift. This was calculated to be an average working week of 38.99 hours. The employment agreement between the applicant and his business sponsor (3060 Cafe), stated the applicant was required to work 38 hours per week, plus overtime as required.
Next, the applicant’s Regional 187 visa had been granted on the basis the Minister was satisfied the applicant met the criteria for that visa, in that he had been sponsored by a designated regional employer – being The Trustee for AI Investment Trust, trading as Thirty Sixty Cafe and Restaurant. However, subsequent evidence obtained by the Department included the applicant had been employed (full time) by Cairns Taxis from 7 March 2015 to 11 April 2016. This information had not been included in the Regional 187 visa application form. Further, when asked during a telephone interview on 29 September 2016, the applicant was recorded as saying he had ceased driving taxis in 2014 and had only recommenced driving taxis in May 2016. He had also admitted working for Cairns Taxis but only on some Sundays. The Tribunal understands the applicant only subsequently claimed he worked full time in both positions.
After then noting the evidence before the Department indicated the applicant had been employed by Cairns Taxis from 7 March 2015 to 11 April 2016 (the number and duration of the shifts have been referred to above), the applicant was advised it did not appear ‘credible that he worked 38 hours per week for the sponsor as a cook during the period 7 March 2015 to 1 February 2016, when he was working an average of 38.99 hours per week as a taxi driver for Cairns Taxis’.[5] The NOICC letter had said it may be the applicant was not employed by Thirty Sixty Cafe and Restaurant (his nominated employer) from 28 November 2014 until 11 November 2015, as stated in the Regional 187 visa form. The applicant had also been advised it appeared the delegate had taken into account incorrect answers to questions and incorrect supporting information in deciding whether to grant the applicant the Regional 187 visa. After considering same, the Tribunal is now satisfied the delegate took into account incorrect answers to questions and incorrect supporting information in deciding whether to grant the applicant the Regional 187 visa.
[5] Department – folio 10.
By agent submissions attached to an email dated 1 November 2018,[6] it was conceded the applicant had been employed by Cairns Taxis between 7 March 2015 and 11 April 2016. It was claimed the applicant worked between 6.00am and 2.00pm at the Restaurant and then he would drive a taxi from around 3.00pm to 11.00pm each day.[7] However, this would mean the applicant was only working seven hour shifts as a taxi driver when in fact the calculation of the delegate indicated he was working approximately 10 hour shifts.
[6] Tribunal – from folio 58.
[7] Tribunal – from folio 58.
Further, at hearing the applicant said he worked as a taxi driver on weekends and he may work two (or sometimes more) nights per week as a taxi driver. At hearing, it was also said the applicant could rest on occasion, when he was driving a taxi. At hearing the applicant also said he may only work until 9.00pm or 10.00pm at night as a taxi driver (and not 11.00pm) as after that time (and or after the airport was closed), there was little if any work as a taxi driver in Cairns. That being said, given the above inconsistencies in the evidence about when and for how long the applicant drove taxis in Cairns, the Tribunal is not satisfied he is a reliable witness. This is one reason that satisfied the Tribunal the applicant worked longer as a taxi driver than he has stated, including at hearing.
Next, the NOICC then stated that in the applicant’s Regional 187 visa form, he did not state he was employed by Cairns Taxis in this period. He said he was employed by Thirty Sixty Cafe and Restaurant from 28 November 2014 to 11 November 2015. In addition, his resume submitted with the Regional 187 visa, did not include any reference to employment with Cairns Taxis in this period. The applicant’s resume indicated he had been employed at Thirty Sixty Cafe and Restaurant from 28 November 2014 until 11 November 2015.
The applicant subsequently conceded he had worked with Cairns Taxis between March 2015 and April 2016, however, it was said this did not stop him from also working full-time with Thirty Sixty Cafe and Restaurant for the same period. He said he worked in both jobs as he needed to “repay friends the money he borrowed from them several years [earlier for] his mother’s cancer treatment”.[8] The agent said the applicant felt compelled to work for Cairns Taxis in order to repay a AUD$15,000 debt to his named friend (Jaswant Singh[9] - letter in support lodged – regarding purchase of a home in Melbourne) after borrowing money from them to pay for his mother’s chemotherapy. The applicant’s mother had been diagnosed with cancer in 2007 however, she passed away in late 2011 (medical records lodged[10]).
[8] Department – folio 31.
[9] Tribunal – folio 8 (reverse side).
[10] Department – from folio 138.
At hearing, the applicant explained that around 2010, he had ‘gone guarantor’ for money his brother had borrowed from the family of a friend in India (the friend resided in Australia). The Tribunal understands that none of that money had been repaid to the friend’s family from 2010 to 2015, at which time the friend requested the money be repaid in order for him to (possibly) purchase a home in Melbourne. After considering same, the Tribunal accepts the applicant repaid the debt (in instalments), that was owed to a friend, and that he had borrowed money from that friend’s family in order to pay for medical assistance for his mother in India (the Punjab).
Next, as noted above, the Department delegate did not accept it was plausible the applicant worked for 38 hours per week as a cook for the sponsor during the period 7 March 2015 to 1 February 2016, while at the same time working an average of 38.99 hours per week as a taxi driver for Cairns Taxis. The delegate noted the applicant claimed to have worked between 6.00am-2.00pm and 3.00pm-11.00pm; meaning he was working or travelling for over 17 hours per day. The delegate then said that regardless of whether such work hours could be maintained even for a short period, the applicant had claimed to have maintained his working hours over a significant period; being between March 2015 and April 2016. The delegate was therefore satisfied the applicant’s submission that he worked as a full time cook for Thirty Sixty Cafe and Restaurant for the period 28 November 2014 to 11 November 2015 was incorrect. This was based on the subsequent information obtained by the Department that the applicant was employed by Cairns Taxis on a full-time basis for at least the period 7 March 2015 to 11 April 2016.
On the applicant’s behalf had been submitted evidence that Thirty Sixty Cafe and Restaurant had confirmed the applicant’s employment and requested the applicant be allowed to continue to work with them. Payslips for the relevant period had been lodged (though these indicated the applicant was paid in cash[11] and no bank details were available). Also lodged were statutory declarations from persons claiming inter alia the applicant was employed at the Thirty Sixty Cafe and Restaurant. Regarding the statutory declarations,[12] three were dated 5 December 2016, and two were dated 6 December 2016. The NOICC was issued 15 May 2017, meaning the statutory declarations were all sworn prior to the NOICC and in the period before the Regional 187 visa was granted (on 12 April 2016). None of the statutory declarations referred to the applicant’s hours of work at the Restaurant. In the circumstances, even if the Tribunal accepts they constitute evidence the applicant worked at the Restaurant, they have not satisfied the Tribunal the applicant worked full time at the Restaurant.
[11] Department – from folio 67.
[12] Department – from folio 106.
Next, the agent said the Department had been relying on the evidence from Cairns Taxis, which the applicant had not seen (though he did not dispute this information was correct), and this was no more ‘definitive’ evidence than the payslips from Thirty Sixty Cafe and Restaurant. By agent submissions attached to an email dated 1 November 2018,[13] evidence of payslips from the restaurant between March 2015 and April 2016 were lodged. By agent submissions attached to an email dated 1 November 2018,[14] it was confirmed there are no records of the applicant’s wages in his bank statement. It was then claimed that was because the applicant was paid in cash and only deposited money into his bank account as he needed to. At hearing, it was also claimed that other employees at the Restaurant were also paid in cash. It was also said that by not accepting the evidence from the Restaurant, this would mean that a decision would have to be made the Restaurant was ‘lying’. The Tribunal notes the agent provided evidence of ‘Scams targeting migrants’.[15] The Tribunal also notes an article from the SBS webpage “Indian restaurants under investigation for alleged visa fraud”[16] (though the 3060 Café is not an Indian restaurant). The Tribunal is not intending to suggest the sponsor’s evidence is intentionally inaccurate, however, I remain satisfied the applicant provided incorrect information on his visa application form.
[13] Tribunal – from folio 58.
[14] Tribunal – from folio 58.
[15] Department – folio 179.
[16] “Indian restaurants under investigation for alleged visa fraud”, SBS 19 March 2018, , accessed 2 November 2018 – other independent reports were also located.

Next, by agent submissions attached to an email dated 1 November 2018,[17] it was stated the delegate said:
27. I consider this information to be incorrect as the Department has evidence the visa holder was employed by Cairns Taxis on a full time basis for at least the period 7 March 2015 to 11 April 2016 and this employment was not the visa holder’s nominated position intended by the grant of his [Regional 187 visa].
NOTE: From a strict reading of this question in the application form my client had answered correctly and the delegate is wrong. This is because my client had correctly declared that the position to which the application relates is a position nominated under r.5.19 as a COOK with [the Restaurant]. This is confirmed by the employer.
[17] Tribunal – from folio 58.
However, and for the reasons set out above, the Tribunal remains satisfied the applicant provided incorrect information on his Regional 187 visa application form.
By agent submissions attached to an email dated 1 November 2018,[18] it was suggested the interpretation of the question about ‘employment undertaken in the last 10 years’ (in the Regional 187 visa application form) was ‘too narrowly construed’ by the delegate and that the applicant thought he was telling the truth. After having considered same, the Tribunal believes the request to ‘Give details of employment undertaken in the last 10 years’ on the visa application form,[19] appears to be clear on its face.
[18] Tribunal – from folio 58.
[19] Tribunal – folio 43 (reverse side).
The agent also said the alleged abovementioned ‘ambiguity’ was exacerbated by the fact that for the applicant, English was a second language. However, the applicant conceded at hearing that he had travelled to Australia on a Student visa, and he had successfully passed courses in Australia at the Certificate III and IV levels, and in English. As noted below, he also was assisted in preparing the visa application form by his migration agent.
At hearing, the Tribunal put to the applicant it would consider whether he intentionally included incorrect information, or whether it was a mistake as he claimed. The migration agent said he did not see why the applicant would wish to provide incorrect information intentionally. In response, the Tribunal said it may be the applicant presumed there could be some advantage, in not providing information to the Department delegate, that may have invited further investigation with Cairns Taxis. However, I make no finding to this effect.
That being said, the applicant had travelled to Australia on a Student visa and was therefore aware for some time, that the information he provided on a visa application form needed to be accurate. It was claimed the applicant only thought he needed to provide the main employment he had undertaken in the prior ten years (though the Tribunal believes the relevant question on the visa application form was clear). The Tribunal also notes the applicant had referred to the Taxi work up to 2013, but he only later conceded he was working full-time with both Cairns Taxis and with the Restaurant for the period March 2015 to April 2016.[20] Also, at hearing it was conceded he had prepared the Regional 187 visa application form with the assistance of a migration agent.[21] Therefore, and based on all this evidence cumulatively, the Tribunal is now satisfied the applicant intentionally provided incorrect information in his Regional 187 visa application form.
[20] Tribunal – folio 8 (reverse side).
[21] See also Tribunal – folio 44 (reverse side).
For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided 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 r.2.41 of the Regulations.
However, and 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 / 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 applicant’s agent said that no incorrect information had been submitted; the fact the applicant worked with Cairns Taxis does not undermine his eligibility for the grant of the Regional 187 visa; that he possess the necessary qualifications in Commercial Cookery; and that his employer had a genuine need for his services. It was claimed that if the applicant’s work with Cairns Taxis was before the delegate, the Regional 187 visa would have been granted. However, based on all the findings herein, the Tribunal is satisfied the decision to grant the visa was based, wholly or partly, on incorrect information.
· the content of the genuine document (if any)
N/A
· the circumstances in which the non-compliance occurred
By agent submissions attached to an email dated 1 November 2018,[22] it was suggested the question in the Regional 187 visa form was ambiguous. However, and for the reasons set out above, the Tribunal does not accept this submission.
· the present circumstances of the visa holder
[22] Tribunal – from folio 58.
The agent said he is unmarried and rents an apartment in Cairns, which he shares with a friend. The agent had said it had (then) been 17 months since the applicant lodged his Regional 187 visa and he had “established himself within the Australian community [and the expat Indian community[23]] and he had maintained employment with his sponsoring employer in his nominated occupation”. The agent also said the applicant is remorseful and shocked, that he had worked hard for many years to try to build a good future for himself. He had “called [Australia] home for the last eight and half years” (though he had now resided in Australia for some 10 years). The applicant said he realised “he made a very serious mistake and he felt terrible that he could have been so stupid” (though this has been discussed above).
[23] Tribunal – folio 56.
The delegate noted that in his response to the NOICC, the applicant said he had worked hard to commence a career as a cook in Australia and there were more opportunities in Australia than in India. He said the hospitality industry is very competitive in India and provides a much lower salary. The delegate accepted the applicant held qualifications and experience as a cook and there was said to be a shortage of skilled staff in the Cairns area. The delegate was satisfied the cancellation of the applicant’s visa could lead to a disruption of his personal and financial circumstances.
At hearing, the Tribunal said it may find (and now does find), the applicant could find work in India, commensurate with his educational attainments (Cert III Commercial Cookery – Cert IV Hospitality) and work experience in Australia. The applicant said (words to the effect) the restaurant business was totally different in India. However, as also stated at hearing, the Tribunal said numerous applicants that had appeared before the Tribunal suggested the work/education experience attained in Australia would allow them to find better work in India. The Tribunal accepts this is correct and the applicant could seek work commensurate with his skills in India.
The delegate also noted the applicant claimed a friend required him to repay money in 2015 as the friend was intending to purchase a house. The applicant claimed he did not wish to cease his employment with Thirty Sixty Cafe and Restaurant, so he had taken on additional employment with Cairns Taxis from March 2015 to April 2016, in order to repay the debt. The delegate noted the applicant claimed that once he had repaid his friend he ceased working for Cairns Taxis. However bank statements provided indicated the last repayment the applicant made to the friend was in January 2017, which suggests the applicant might still have been employed by Cairns Taxis at the time; otherwise it may be he was able to repay the debt solely on the income he received from the Restaurant. Whatever the case may be, the Tribunal accepts the debt is fully repaid, and since that time (January 2017), the applicant has not had to pay more than usual accommodation and living expenses in Australia.
That is relevant as at hearing the applicant said he would need money to establish his own restaurant in India. However, the applicant has had access to the financial wherewithal to return to India (on at least one occasion), pay for courses in Australia, repay a debt to his friend, and he has not had more than usual accommodation and living expenses in Australia since at least January 2017. Accordingly, I am satisfied he could re-establish himself in India; though the Tribunal also accepts the applicant may obtain less wages in India.
Next, it was noted the applicant had ongoing employment options in Australia (most recently to work in a restaurant in Grafton NSW – and where it was also claimed there was a skilled shortage[24]). The agent said the applicant’s qualifications and experience as a cook are an asset to the Australian community, particularly given there is a documented shortage of skilled labour in regional areas of Australia such as Cairns (post hearing submissions referred to the skill shortage in rural areas, and to work of the Cairns Chamber of Commerce, and to a website confirming the skill shortage and the Tribunal has had regard to same[25]). By agent submissions attached to an email dated 1 November 2018,[26] it was claimed the decision to cancel the applicant’s visa would exacerbate the skill shortage.[27] The owner of Thirty Sixty Cafe and Restaurant had advised they had to periodically place job advertisements to attract more kitchen and front of house staff. The cafe’s long opening hours and inadequate staff numbers are the main reasons why the cafe needs to recruit regularly.[28]
[24] Tribunal – folio 52.
[25] Tribunal – folio 64.
[26] Tribunal – from folio 58.
[27] Tribunal – folio 57 (reverse side).
[28] Department – folio 140.
At hearing, the agent also noted it was very difficult to get cooks to work in far north Queensland and the local council was preparing submissions to the Federal Government in order to facilitate their capacity to attract workers to the area. The Tribunal accepts this to be correct, but given the applicant’s most recent work option is in Grafton NSW, it does not appear they would retain the applicant whether or not his visa is cancelled. However, the Tribunal accepts there may be a shortage of cookery skills in some regional areas of Australia.
Next, the applicant also said he wanted to become an Australian citizen. The Tribunal accepts the applicant wished to become an Australian citizen, and that if his visa is cancelled he would not be allowed to become an Australian citizen. The Tribunal has taken this into account in its final assessment of this case.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Based on the delegate’s and now the Tribunal’s finding the applicant had intentionally provided incorrect information in his Regional 187 visa application form, I now find that he had continued to deny having done this. However, the Tribunal has no evidence the applicant has behaved improperly with regard to his 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
Other than that which is referred to herein, the Tribunal has no information of other instances of non-compliance by the applicant.
· the time that has elapsed since the non-compliance
The non-compliance occurred when the applicant lodged his Regional 187 visa on 11 December 2015. The Tribunal is not satisfied this is a lengthy or significant period from the date of the Tribunal decision. However, the applicant had resided in Australia since 2008. Therefore, he had resided here for over ten years. The Tribunal has taken this into account in its final assessment of this case.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The agent said it had (then) been 17 months since the applicant lodged his Regional 187 visa and he had “established himself within the Australian community and maintained employment with his sponsoring employer in his nominated occupation”. It was said he had never engaged in criminal conduct in Australia or overseas and had demonstrated this by his efforts that he is a person of good character. The Tribunal notes this claim.
· any contribution made by the holder to the community
The applicant said that Australia had taught him the value of hard work; that he respected Australian values; and that he had learnt the importance of democracy, mutual respect and tolerance. The applicant also said he attempted to live as a respectable member of the Australian community, he had donated blood, and he also donated money to the Heart Research Centre[29], and he helped with other charitable works. Other contributions were said to include the ‘Red Cross’.[30] It was also claimed the applicant had ‘recently donated $10 to the appeal for farmers through the Commonwealth Bank’.[31] The delegate also noted the applicant had been earning money and paying taxes. The delegate was not however satisfied, these contributions mitigated the non-compliance. Also lodged with the Tribunal was a reference from ‘Guru Nanak Sikh Mission Gordonvale NQ Incorporate’, dated 5 November 2018,[32] indicating the author had known the applicant for five years and he had been ‘very helpful, caring and warm … towards the community’. At hearing, he said he worked most Sundays (to 2pm) at a named Temple around Cairns, in (ie) the preparation of food for congregation members.
[29] Tribunal – from folio 49.
[30] Tribunal – folio 59; and from folio 46.
[31] Tribunal – folio 56 (reverse side).
[32] Tribunal – folio 60.
That being said, when discussed at hearing, other than work, his prior study, and that which is set out immediately above, the applicant’s engagement with the community appears to be limited to common benefits and interactions that might be expected when residing in an area for a lengthy period.
·regarding whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal notes the unmarried applicant had travelled to Australia when he was 23 years of age and he had resided here for 10 years. Both his parents had passed away, though he has a married brother in India. That being said, if the applicant’s visa is cancelled, he may be subject to detention under s.189 and removal under s.198 of the Act. He may also be denied the benefits he obtained in Australia. However, based on the information before the Tribunal I am not satisfied the applicant would be subject to indefinite detention (he had returned to India previously). I also accept he would temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing.
The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia. Subject to any further visa the applicant applied for, he may also be subject to PIC 4013 - meaning he could not be granted a temporary visa for three years from the date of cancellation. However, the Tribunal notes these are the consequences of a decision to cancel a visa; though I have taken this into account in this case.
·whether there would be consequential cancellations under s.140
The Tribunal has no information there are any dependent visa holders whose visa would or may be cancelled if the applicant’s visa is cancelled.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
There is no information before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.
Summary
As noted above, and amongst other things, the Tribunal accepts the applicant would prefer to remain in Australia, and he may suffer some disadvantage should his visa be cancelled (including the loss of a permanent visa). However, and as noted at hearing, the Tribunal said that if it was satisfied the applicant had intentionally provided incorrect information in his Regional 187 visa application, and had attempted to deceive the immigration authorities in Australia, this may impact other findings herein. For the reasons stated above, the Tribunal is satisfied the applicant intentionally provided incorrect information in his Regional 187 visa form. Even after taking into account all the disadvantages the applicant would suffer should his visa be cancelled, the Tribunal has decided it is appropriate to affirm the decision to cancel the visa in this case.
The Tribunal has therefore decided there was 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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Mr S Norman
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.

[2018] AATA 5489

13 November 2018

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