Sanjeet Kumar (Migration)

Sanjeet Kumar (Migration) [2018] AATA 5242 (26 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sanjeet Kumar
CASE NUMBER:  1721033
DIBP REFERENCE(S):  BCC2017/1290577
MEMBER:Catherine Carney-Orsborn
DATE:26 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 26 November 2018 at 5:08pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – consideration of discretion – disclosure of time spent outside India prior to visa application – unintentional mistake of calculation – charged with offences pending legal action in India – unlawful import – family violence – serious injuries sustained by wife – lack of satisfactory explanation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 104, 107, 109

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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with section 101(b) and section 104 and therefore cancelled his visa pursuant to s.109. 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 6 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a witness (the applicant’s employer).
A Hindu interpreter was present to interpret from English to Hindu and Hindu to English.
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 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.
The Tribunal took oral evidence and submissions from the applicant. A summary of the evidence is as follows.
The Tribunal explained the process and explained that it had the Department file, access to databases and the Tribunal file.
The Tribunal explained that the hearing was the applicant’s opportunity to discuss issues that are relevant to the cancellation.
The Tribunal explained that there was an s.375A certificate on the file. The Tribunal explained that in the Tribunal’s view it was not valid as all the information covered by the certificate had already been disclosed to the applicant in the notification letter and the decision. The applicant had already provided submissions on the information in relation to charges and was aware of them.
The representative inspected the s.357A certificate and agreed that it was not relevant as they already had all that information provided to them.
The Tribunal then went through the incorrect information that was provided by the applicant on his visa application. The incorrect information related to the applicant not disclosing he had spent time outside India in the last 5 years prior to his visa application and not disclosing he was charged with offences currently awaiting legal action.
The applicant said he simply made a miscalculation in relation to the time he was in the United Kingdom.
In response to the first criminal charges he said it was the owner of the business who was responsible. He said it was a fraud case. He said that he was told it could be settled and the owner told him to plead guilty however he would not agree to this. In relation to the second charges relating to the assault on his spouse in India. He stated that it was simply a family disagreement that exploded. He said it was not a very big argument and that the charges were false. He said it was only a small thing that got out of hand. He claims he did not do what was alleged. He explained that he does not get along with his in laws. He said he never has gotten on with them. He said he went back to India to settle the issue and his in-laws did not want it to be settled.
He said that he did not know that he to inform the Department of any charges; he said that at the time he had no idea he had to inform them of the further charges.
He said that he was granted his visa on 27 February 2018 and he was charged on 4 February 2018. He claims he had no idea he could still inform the Department and he claims that if he had known about it he would have done so.
He confirmed he is currently working at the Hotel in Bowral. He has been working there since March 2017 and is still working there. He said he has work rights on his bridging visa.
He said he would like the chance to stay here (Australia) and work with the same company. He said the environment is brilliant and he wants his family to come over and stay with him. He said he does not want his spouse’s family to have access to them. He said she still lives with her family. He said he would like to stay if given the chance.
The Tribunal said that the visa which was cancelled is only a temporary visa and in earlier submissions he said he would return to India with his experience to further his career. He responded that he would like to stay in Australia however he would return if that was not the case.
The Tribunal took the applicant through the discretionary criteria. In relation to the time that has elapsed he said he has good friends and colleagues in Australia.
He said he made a mistake however he misinterpreted whether they were criminal charges. In relation to the spouse violence he said it was untrue and was a beat up. He said he was not aware of his obligations and any decision would have serious consequences for his future career. He has friends and wants to stay.
The Tribunal then took evidence from the applicant’s employer. He confirmed the reference he had earlier provided. He said it was hard to find reliable employees. He said the applicant has contributed to the business. He said he could only comment on his observations within the organisation and he found him to be a good employee and the organisation has benefited from his contribution as an employee.
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 in the following respects:
On 12 January 2017 the applicant lodged an application through the Department’s online lodgement facility for a subclass UC-457 temporary Work (Skilled) visa to work in the nominated occupation of Café or Restaurant Manager for his prospective employer.
On the completed form ‘Temporary Work (Skilled) (subclass 457) Visa on page five the applicant answered “no” to the Health Declarations “In the last 5 years, have you, or any other person included in this application, visited, or lived, outside INDIA for more than 3 consecutive months (other than Australia)?
In the Character Declarations “Has any applicant ever been charged with any offence that is currently awaiting legal action? The applicant answered ‘no”.
Information provided to the Department indicated that the applicant had been outside India within the previous five years before the date of the application lodgement. Information indicated the applicant had been in the United Kingdom between January 2012 and October 2012.
Information provided to the Department indicated that on 31 July 2014 the applicant was served with a summons based on charges filed in court in New Delhi on the same date for ‘Section 33 of the Delhi Excise Act – Penalty for unlawful import, export, transport, manufacture, possession.” The applicant attended a court hearing on 14 December 2016 with a subsequent hearing for 14 March 2017 for which he obtained permission to travel outside India and with a further hearing date of 6 June 2017.
The notice stated that the delegate considered the applicant has provided incorrect information in the Health Declaration Section and Character Declaration Section of the application form lodged with the Department and had failed to comply with section 101(b) of the Act.
On 4 February 2012 a further charge sheet was filed against the applicant with the Metropolitan Magistrates court in Delhi for offences that were perpetrated by him on 27 December 2016. These charges include offences against sections 323, 325, 341, 506, 509 and 34 of the Indian Penal code.
The notice indicated that the applicant had not complied with s 101(b) and section 104.
The notice went into detail in relation to how the applicant could respond to the process and consequences of a visa cancellation.
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.
At the hearing and in submissions provided to the Department the applicant agreed that he had provided incorrect information on the application lodgement form.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s104 by the applicant 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 r.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 applicant claimed that he simply made a mistake in his calculation in relation to him living outside India in the five years before he made the application for the temporary 457visa. He had provided the documents to the Department with his application which showed his study and work in the United Kingdom. The information on the department file indicates he did provide this information.
The Tribunal accepts that this could have been an unintentional mistake of calculation.
In response to the charges filed in court in New Delhi for “section 33 of the Delhi Excise Act - Penalty for unlawful import, export, transport, manufacture, possession.” He claimed in written submissions that he did not understand that it was a criminal case. He claims that it is a false case and he is innocent. He also outlined that the police took him to the police station where he gave a statement and was bailed. He further had the assistance of a lawyer and sought permission to travel from the court. Given the above which involved the police, appearing before the court, being bailed and being represented by a lawyer the Tribunal does not accept that he did not know he was charged with a criminal offence.
In relation to the third matter where on 4 February 2012 a further charge sheet was filed against the applicant with the Metropolitan Magistrates court in Delhi for offences that were perpetrated by the applicant on 27 December 2016 and included offences against sections 323, 325,341, 506, 509 and 34 of the Indian Penal code. The applicant claimed he did not know his wife had filed the charges. He claims they have since reconciled and his wife and his children are listed as his dependents.
In his written submissions he claims that he and his wife made a huge mistake and they admitted their mistakes. In his oral evidence he stated that it was simply a family disagreement that exploded. He said it was not a very big argument and that the charges were false. He said it was only a small thing that got out of hand and a disagreement between the women in his family.
The Department in their decision which is attached to the application for review and decision states that the police report alleges that the victim being the applicant’s wife was violently and physically assaulted by the applicant in which she sustained a broken leg and multiple bruises and lacerations all over her body.
He provided documents which indicate his wife sought to withdraw charges against the applicant.
The applicant provided to the Tribunal documents which indicate he returned to India and entered into a Settlement/Agreement with his wife. That agreement included that she and the children come to Australia and that he pay maintenance.
The applicant did not provide the correct information to the Department. This facilitated the grant of his temporary 457 visa. If the correct information had been provided the application would have been further considered by the Department and further information sought.
The Tribunal accepts that he may have made a miscalculation in regard to the time he was outside India and in the United Kingdom.
The Tribunal does not accept that he did not realise he had criminal charges which were yet to be heard and finalised or that he did not know of the charges laid against him by his wife.
The injuries in relation to his wife were serious and he was charged with serious offences. He chose not to inform the Department of those charges after the application was lodged and before he was granted the 457 visa. In his written submissions and at hearing he sought to down play the seriousness of the injuries and stated it was a beat up.
The applicant is presently employed at a Hotel in country NSW. He provided references from his employer. The employer attested to his value as an employee. There was nothing to indicate the employer was aware of the criminal charges which had been laid against the applicant.
He further provided two references from a customer and fellow employee. The Tribunal accepts that they find the applicant to be good employee and of good character.
There is nothing before the Tribunal to indicate there has been any other non-compliance or he has failed to comply with the conditions of his visa. He co-operated by providing a response to the Notice of Intention to cancel his visa.
The Department was made aware of the non-compliance in February 2017. The applicant arrived in Australia in March 2017. The Department made a decision in September 2017 and the applicant lodged an application for review. Since that time the applicant has returned to India and has worked to the Hotel. The Tribunal does not consider that this is a significant period of time given the procedures that have been followed.
The applicant in submissions and statements provided stated that he is happy in Australia. He would like to stay and bring his wife and children to Australia. He provided statements as set out above.
The applicant’s employer came to the hearing. He provided evidence that the applicant is a valued employee. He claimed that it would be difficult to find another employee who could fill the role the applicant has. The applicant has been in the role for a relatively short period of time. He returned to India in July and came back to Australia in September 2017. The Tribunal has considered his work in Australia and the references from his employer.
The Tribunal has carefully considered all the evidence and information before it. As stated earlier the Tribunal will accept that the applicant may have made a mistake on the time he was out of India and In the United Kingdom.
In relation to the criminal charges the Tribunal does not accept that both were false charges. It does not accept the applicant’s assertions at hearing that he was the victim of his employer in India and then his in-laws. The Tribunal does not accept that he was unaware he had criminal charges pending. The Tribunal does not accept that the assault on his wife was not a very big argument and that the charges were false. He said it was only a small thing that got out of hand. He claims he did not do what was alleged.
The Tribunal after considering all the evidence is satisfied that the criminal charges are serious. The Tribunal accepts that the applicant’s wife may have entered into a settlement however finds that the settlement places emphasis on the wife and children being bought to Australia it does not change the fact that serious injuries were sustained and serious charges pending when the applicant was seeking to come to Australia on the temporary work visa.
The cancellation would result in the applicant being unlawful. At hearing he indicated he would return to India if his visa was cancelled. There are no consequential cancellations as his family do not have visas. There is nothing to indicate international obligations would be breached as a result of the cancellations.
Certain sanctions will apply in relation to any further applications for visas to Australia.
The Tribunal has considered the consequences for the applicant and weighed it up against the evidence as outlined above.
The Tribunal has found that the applicant misled the Department by providing incorrect information in his application for a temporary work 457 visa. He did not provide any satisfactory explanation and at hearing sought to deflect blame on his employer and female members of his family.

The Tribunal gives the behaviour and misleading conduct outlined above indulged in by the applicant significant weight as it indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations. The Tribunal has considered that his employer considers him to be a valued employee however the Tribunal is not satisfied that there are factors of such significant that they ameliorate his behaviour.
The Tribunal finds that there was non-compliance with s.101(b) and s104 by the applicant in the way described in the 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 457 (Temporary Work (Skilled)) visa.
Catherine Carney-Orsborn
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 5242

26 November 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Appeal