Shaheen (Migration)

Shaheen (Migration) [2020] AATA 2568 (18 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Shabana Shaheen
Mr Muhammad Saqib
Miss Ayait Noor Saqib
CASE NUMBER:  1822437
HOME AFFAIRS REFERENCE(S):          BCC2015/3362695 BCC2016/4280738
MEMBER:Cathrine Burnett-Wake
DATE:18 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 May 2020 at 2:25pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – incorrect information in related position nomination applications – bogus documents with forged signatures provided by recruitment consultant – employers stated they have never sponsored or employed applicant – applicant has not worked on either visa granted, without informing department – dob-in allegation that applicant paid for visa sponsorship scheme – operation of s 116(1AB) – nomination and visa applications directly related – probable fraud by consultant, with applicant’s knowledge – discretion to cancel visa – child secondary applicant’s health – rights of Australian citizen child – health care and education in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359A, 359AA, 375A
Migration Regulations 1994 (Cth), Schedule 2, r 187.233; Schedule 8, Condition 8107
Citizenship Act 2007 (Cth), s 12
CASES
MIBP v Singh [2016] FCAFC 183
Rani v MIMA (1997) 80 FCR 379

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 27 July 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 187 - Regional Sponsored Migration Scheme visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1AB) of the Act. A copy of the decision record of the delegate was provided to the Tribunal by the applicant at the time the review application was lodged. The delegate in their reasons for cancellation stated:
• I find incorrect information was given in the RSMS nomination on the visa holder’s behalf to an authorised system - as per section 116(1AB)(a).
• The incorrect information was taken into account by the delegate in connection with making a decision to grant the visa - as per section 116(1AB)(b).
Specifically, the delegate assessed the nomination associated with the visa application had been approved, and the information provided in the nomination was correct, therefore that the visa holder met the following time of decision requirement to be granted the visa:
Regulation 187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of
Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the
nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
If the delegate had been aware at the time of decision, of the above apparent incorrect answers in the linked nomination application, this would have affected their assessment whether the following Regulations were met:
187.233(2) – as the nomination does not appear to have been made by the person who was going to purportedly employ the visa holder.
187.233(4A) – as the person who made the nomination appears to have provided incorrect information and a bogus employment contract, there is adverse information known to immigration about them.
187.233(5) – as the purported employer claims they did not lodge the nomination or sign an employment contract with the visa holder, this indicates the nominated position was not available to the visa holder.
The provision of the incorrect information in the linked RSMS nomination enabled the visa holder to be granted the visa, to which she may not have been entitled.
• As the incorrect information was not provided in the actual visa application itself, it is not covered by subdivision C – as per section 116(1AB)(c).
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at [385], [393], [400]; Tien & Ors v MIMA (1998) 89 FCR 80 at [96]. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
The applicant has two other children, not listed as applicants, Muhammad Hassam Saqib born in February 2017, who is an Australian Citizen and Uswa Saqib born in October 2018, who holds a bridging visa.
The applicants appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant confirmed to the Tribunal at hearing that she had read the delegate’s cancellation decision.
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
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1AB). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Background
The applicant and her husband first arrived in Australia on 20 November 2011. The applicant was the holder of a student visa valid until 6 March 2013, the applicant’s husband was a dependant to this visa. The applicant was granted two subsequent student visas whilst in Australia, the second of which ceased on 12 May 2015, again the applicant’s husband was a dependant to these visas. During the applicant’s time on the student visas she studied a diploma of business followed by commercial cookery certificates leading to a diploma of hospitality management.
In December 2012 the applicant’s daughter Ayait Noor was born.
On 12 May 2015 the applicant was granted a subclass 457 visa based on a nomination with The Good Luck Tea House for the position of Cook. The applicant’s husband and daughter were granted subclass 457 visas as dependants.
On 12 October 2016 the applicant, her husband and daughter were granted Direct Entry subclass 187 visas based on the applicant’s nomination as a Chef with The Trustee for Wilson Business Trust trading as the Wallace Hotel.
In February 2017 the applicant’s son Muhammad Hassan Saqib was born. As the applicants were permanent residents at the time of his birth, he was born an Australian citizen by virtue of s.12(1)(a) of the Citizenship Act 2007.
In late 2016 the Department received information from a third party source alleging that the sponsorship provided to the applicant for the subclass 457 visa with Good Luck Tea House and the Subclass 187 visa with Wallace Hotel were not genuine and that the applicant was involved in a paying for visa sponsorship scheme and that bogus documents were submitted as part of these nomination applications.[1]
[1] This information was put to the applicant under s.359AA see paragraphs [42] to [49].
A co-director of Good Luck Tea House denied that the applicant had ever worked for the business or that they had nominated her for a visa.[2]
[2] This information is contained within the Department’s decision record at page 25.
On 28 February 2017 in response to a request by the Department to confirm the visa holder’s employment, Andrea and Craig Wilson the owners of Wallace Hotel, advised that the Wallace Hotel has never employed the visa holder or sponsored her.[3]
[3] This information is contained within the Department’s decision record at page 3.
On 4 August 2017, Andrea and Craig Wilson further advised the Department:
• They never submitted any documents to the Department for the visa holder.
• They have never employed the visa holder or signed her up to work for their business.
• False documents with forged signatures were provided to the Department by a third party without their knowledge.[4]
[4] Ibid.
On 28 June 2018, the Department notified the applicant of its intention to consider cancellation of the Subclass 187 visa. On 5 July 2018 the applicant responded through their migration agent. On 12 July 2018 the Department put further adverse information to the applicant. On 21 July 2018 the applicant responded through their migration agent.
In the responses the applicant maintained the nominations to her knowledge were genuine and arranged through a recruitment consultant, albeit she never commenced work with either employer.[5]
[5] Detailed responses are contained within the Department’s decision record.
Notwithstanding the responses on 27 July 2018, the Department proceeded to cancel the applicant’s subclass 187 visa. Consequently, the applicant’s husband and daughter’s subclass 187 visas were also cancelled.
The hearing
Section 375A Certificate
At the commencement of the hearing the Tribunal advised the applicant that the Department file relating to her review contained a Certificate relating to Notification Regarding Disclosure of Certain Information to the Administrative Appeals Tribunal Under s.375A of the Act. The Tribunal provided a copy of the certificate to the applicant at hearing.
The Tribunal explained to the applicant that it had taken the view that it is a valid certificate and accordingly release of information which is covered by the certificate is prevented. The Tribunal explained that it has taken the view that the certificate is valid because of a public interest reason(s). Further the non-disclosure reasons are clearly specified in the certificate with sufficient detail to identify the claimed harm to the nation or public service and or an individual. It was explained that the certificate material contains information shared between internal sections of the Department and external agencies and persons and the disclosure of this information would be contrary to the public interest. The Tribunal explained to the applicant that the primary decision record, which she had submitted with her review application, contains the majority of the information protected by the certificates and relates to information regarding whether she was validly nominated by the Good Luck Tea House for a subclass 457 visa and by the Trustee for Wilson Business Trust trading as the Wallace Hotel for a Subclass 187 visa application.
The Tribunal outlined to the applicant that in accordance with the Full Federal Court decision in MIBP v Singh [2016] FCAFC 183, the Tribunal is required to balance its obligations under s.375A with its obligations under s.359A of the Act, where it is possible to do so. It was explained that s.359A of the Act sets out a procedure for the Tribunal to inform applicants of potentially adverse information and invite them to comment on or respond to that information before the Tribunal decides on their application. The Tribunal outlined that during the hearing it will be putting information to her that is contained in the certificate in accordance with s.359AA.
The Tribunal asked the applicant if she would like to make any submissions concerning the certificate, including but not limited to its validity. The applicant outlined she had no comments regarding the certificate.
The applicant’s evidence at hearing
During the hearing the applicant outlined that she, along with her husband, first arrived in Australia at the end of 2011 on a student visa. She told the Tribunal that she attended the South Pacific Institute in the Melbourne central business district where she first studied business management then following on from that completed a certificate III in commercial cookery before completing a diploma in hospitality. The applicant told the Tribunal she could not recall the exact dates of when she completed her qualifications however, it took her approximately one year to complete her initial business management course and a further two years to complete her hospitality course which she told the Tribunal she believes she completed around the end of 2015.
The applicant told the Tribunal that she applied for a subclass 457 visa as a Cook with the Good Luck Tea House in Prahran based on her certificate III in commercial cookery qualification. The applicant told the Tribunal that this position was organised by a recruitment consultant by the name of Mr James Sackl. The applicant told the Tribunal that she found the job through an online advert on the Gumtree website and contacted Mr Sackl. The applicant told the Tribunal that she paid Mr Sackl $1500 in recruitment fees for the position.
The applicant told the Tribunal that although she was granted the subclass 457 visa to work with the Good Luck Tea House, she never commenced working for them on the subclass 457 visa as she claims they told her there was no position for her after it was granted. She however, claimed that she did do unpaid work for them for approximately 3 months prior to the subclass 457 being granted as work experience, which she claimed she previously provided information to the Department about.
The applicant told the Tribunal that her migration agent who lodged the visa application informed her that Mr Sackl had provided documents on behalf of the Good Luck Tea House for the nomination process.
The Tribunal asked the applicant if she was aware of conditions attached to her subclass 457 visa; specifically, that she must maintain employment with the sponsoring employer. The applicant told the Tribunal that she did not understand the process very well and relied on the advice of her migration agent. The Tribunal asked the applicant if she informed the Department that she never commenced employment with the Good Luck Tea House after the subclass 457 visa was granted. In response the applicant said that she spoke to her migration agent but was advised not to worry as she still had time left on her student visa. The Tribunal asked the applicant if she knew that her student visa ceased when her subclass 457 visa was granted. She responded that she did not know about such things.
The Tribunal asked the applicant if she had ever worked as a Cook or Chef in Australia. In response the applicant said that when she initially arrived in Australia she worked in a plastics factory for a few months, however, she has never worked as a Cook or Chef and that her husband works to support their family.
The Tribunal asked the applicant to explain how she came about being nominated by the Wallace Hotel.
The applicant told the Tribunal that Mr Sackl again helped her, and he was responsible for securing the nomination with Wallace Hotel. She told the Tribunal that he agreed to help her because the job with the Good Luck Tea House did not eventuate. The applicant told the Tribunal that Mr Sackl said he was aware of a job that his good friends had available and he organised everything regarding the position for her including arranging an interview and obtaining all the supporting documents for the nomination application. The Tribunal asked the applicant if she paid Mr Sackl to secure employment with the Wallace Hotel, to which she responded she did not pay him anything. The Tribunal asked why she did not have to pay him this time, if she paid for his services to obtain the nomination with the Good Luck Tea House. In response, the applicant said that he never asked for money and it was because the other nomination did not work out.
The applicant told the Tribunal that she first met with the Wilsons on 2 November 2015 when she had an interview with them. The Tribunal asked why given she only met them for the first time on 2 November 2015 had the nomination application already been lodged with the Department and the Regional Certification Board for the position including supporting documents prior to the date of her interview.[6]
[6] The nomination application was lodged electronically with the Department on 29 October 2015. This is set out in page 2 of the Department’s decision.
The applicant claimed that Mr Sackl told her that Craig and Andrea Wilson, who owned the Wallace Hotel, were his good friends and that they had already undertaken to sponsor her even before the interview. She told the Tribunal that Mr Sackl had told her that the Wilsons had supplied documents to him on 19 October 2015 to support her RSMS nomination application which were then supplied by Mr Sackl to her migration agent.
The Tribunal asked whether the applicant thought this was an unusual arrangement considering she had not met the owners in person before the interview. In response the applicant claimed that the interview went well, and they agreed to give her a job, so she thought there was nothing strange about the situation especially because Mr Sackl had told her he was good friends with the Wilsons.
The applicant told the Tribunal that though a Regional Certification Board (RCB) application had been submitted for the role, it was pending and had somebody else’s name on it who was no longer available to take up the position with the Wallace Hotel. The applicant told the Tribunal that the RCB was contacted on 2 November 2015 after her interview to change it to her as the nominated person and that it was approved by the RCB with her name on 5 November 2015.
The Tribunal asked the applicant why if she was offered the job, did she not take up the position straight away. The applicant responded that the Wilsons told her that she could commence, however, the salary would be lower than what was going to be paid once the visa was granted. The applicant then said she and her husband decided that she would not take the position on that basis of the lower rate and she would wait and commence when the visa was approved.
The applicant then told the Tribunal that she did not have any further contact with the Wilsons until her visa was granted in November 2016. The applicant told the Tribunal that the second time she went to the Wallace Hotel was approximately 10 days after the visa was granted.
The applicant claims that when she went back the second time, the Wilsons were pleased her visa had been granted but told her that things were quiet and that they would call her in a few weeks when things picked up.
The applicant claimed that the Wilsons did not call her as promised. The applicant claims she went back to the hotel in early 2017 but could not recall the exact date. She claimed she returned to ask what was happening with the position. She claims she was told by Mrs Wilson that she needed to wait and that they would be in contact. The applicant claimed that as she was pregnant with her son, Mrs Wilson requested a medical certificate in case the Department contacted them and asked why she had not started.

The Tribunal asked the applicant given her claims that the Wilsons had not committed to a start date whether at any point she thought that there was possibly no job available. In response the applicant said if she had any doubt, they would not sponsor her then she would not have gone to them even once. Further, that if she had any doubt, she would not have accepted the job. The applicant claimed that through the whole process she was satisfied that the sponsorship was legitimate and was shocked when she received the email from the Department cancelling her visa.
Section 359AA
The Tribunal outlined to the applicant that as it stated earlier in the hearing, that it would be putting information to her that was protected by the s.375A certificate and that it would at this point in the hearing now formally put information to her pursuant to s.359AA and explain why it is relevant and seek comments on the information. The Tribunal outlined that she already knew most of it, as it was contained within the decision record.
The Tribunal outlined that the first piece of information was that Andrea and Craig Wilson, the owners/directors of the Wallace Hotel have categorically stated that the applicant had never been in their employment, nor have they sponsored/nominated the applicant for a subclass 187 visa application. Further, they have never submitted any documents to the Department for the applicant and they have confirmed false documents with forged signatures were provided to the Department by a third party without their knowledge.
The Tribunal outlined that the second piece of information was that the Department has received information from a third-party source, a dob in. The Tribunal explained that this third-party person’s identity is known to the Tribunal and the Department but is protected by the Certificate that was discussed earlier, however, the applicant knows the third-party personally. The Tribunal outlined that the dob in alleges that the sponsorships provided to the applicant were not genuine. Further that the applicant was knowingly involved in a paying for visa sponsorship scheme for her subclass 187 visa and her previous subclass 457 visa and that bogus documents were submitted as part of these applications.
The Tribunal outlined to the applicant that this information is relevant to the Tribunal’s considerations regarding whether the grounds for cancellation are made out because it would indicate that incorrect information was provided for the RSMS nomination and that she was never legitimately nominated by Wallace Hotel and this would have impacted the assessment of relevant criteria for her subclass 187 visa application. Specifically, in relation to subclauses:
·187.233(2) as the nomination does not appear to have been made by the person who was going to purportedly employ the visa holder;
·187.233(4A) as the person who made the nomination appears to have provided incorrect information and a bogus employment contract, there is adverse information known to immigration about them;
·187.233(5) as the purported employer claims they did not lodge the nomination or sign an employment contract with the visa holder, this indicates the nominated position was not available to her.
The Tribunal outlined that as a consequence of the information being relied upon, it may find that incorrect information was given in regard to the RSMS nomination on the applicant’s behalf to an authorised system, and that the incorrect information was taken into account by the delegate in connection with the decision to grant the visa.
The Tribunal outlined that this information, subject to any comment or response the applicant may make, would be the reason, or a part of the reason for affirming the decision that is under review.
The Tribunal then asked the applicant if she understood why this information was relevant to the Tribunal’s decision, to which she confirmed she did.
The Tribunal asked the applicant if she wanted to comment on or respond to that information now, or if she needed additional time to consider the information before doing so. The applicant told the Tribunal she was happy to proceed with the hearing.
The applicant told the Tribunal that all the documents from the Wallace Hotel for the nomination were provided by Mr Sackl, that she had not received any documents from the Wilsons and that Mr Sackl had supplied them to the migration agent direct to lodge the application.
The Tribunal asked the applicant if she had paid Mr Sackl money to secure visas. In response the applicant stated that she never paid him money. The Tribunal pointed out to the applicant that in evidence she provided earlier she stated she had paid fees to Mr Sackl. The applicant responded she only paid recruitment fees as he was a recruitment agent.
The applicant re-stated that the documents were not provided to her directly they were provided to Mr Sackl and that he had told everything about her to the Wilsons, that is why the RSMS nomination was submitted.
The Tribunal asked the applicant why, if she thought the nomination was genuine, would the Wilsons have categorically stated to the Department that she had never been in their employment, nor had they sponsored/nominated her for a subclass 187 visa application. Further, why would they state they have never submitted any documents to the Department for her and have confirmed false documents with forged signatures were provided to the Department by a third party without their knowledge.
The applicant told the Tribunal that in her last call to the Wilsons in around May 2017, that they requested she pay them $30,000. The applicant claimed that Mrs Wilson said that if she did not pay that they would get her in trouble and that they had found someone else who was willing to pay for sponsorship. The applicant claims she did not pay so that is maybe why they have not sponsored her.
The Tribunal pointed out to the applicant that permanent residency had already been granted at the time of this claimed call, so ‘sponsorship’ had already occured. The applicant then stated to the Tribunal that she was aware that her visa conditions required her to start the position within 6 months so that is why she believed the Wilsons had requested the money as it was nearly 6 months since the visa was granted and because she did not pay they dobbed her in to the Department to cause trouble. The Tribunal pointed out that the ‘dob in’ that was discussed earlier was a third party. It was not the Wilsons, they merely confirmed to the Department when contacted that she was not employed by them, nor nominated for a visa, so her narrative was not consistent with the facts.
The applicant stated that she had made a genuine effort to start the job within the 6 months from when the visa was granted, that she believed the sponsorship was genuine and was unaware of any bogus documents. The applicant stated to the Tribunal that she had sold everything overseas, that she believed everything regarding the job was clear. She met them, they interviewed her, they agreed to sponsor her, and they even asked her to change the name with the RCB. She then stated it was later that they called her for money and got her in trouble when she did not pay.
The applicant told the Tribunal that there were lots of mistakes in the Department’s decision record. The Tribunal asked what these mistakes were. The applicant stated that she had changed her name with the RCB, and the delegate’s decision was wrong saying it was approved on 2 November 2015, when it was approved on 5 November 2015.
The applicant told the Tribunal that she has all the correct qualifications for the job, and that if she knew this job was not genuine, she would have got a job and sponsorship somewhere else.
The Tribunal discussed with the applicant that if it decided that the ground for cancellation exists that it must proceed to consider whether the visa should be cancelled. The Tribunal explained that there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal would have regard to the circumstances of the case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal invited the applicant to put forward any factors that she would like the Tribunal to consider.
The applicant put forward the following reasons why she thought the visa should not be cancelled and asked the Tribunal to consider them:
·Her daughter’s medical issues - she claimed that each time her daughter went to Pakistan she experienced gastroenteritis issues and could not eat the food or drink the water there. She claimed whenever they returned to Australia the issue would resolve. The applicant also claimed her daughter had hearing issues and was scheduled for a test. The applicant however, when asked if her daughter could obtain medical treatment in Pakistan for her medical issues, said that they could access medical assistance. At the hearing the applicant provided letters from doctors in Pakistan regarding her daughter’s medical issues, which the applicant stated supports her claims regarding her daughter’s stomach issues.
·The applicant put forward that they have owned their own home in Pakenham for 2 years and have a mortgage.
·The applicant put forward that her son is an Australian citizen, that in Pakistan there is a lower level of education and health care. The Tribunal asked the applicant if her son had health problems, which she replied he did not. She however claimed that the language in Pakistan is different to Australia. The Tribunal asked the applicant what language they spoke at home, which she confirmed to be Urdu.
·The applicant put forward that her daughter has commenced her education in Australia, that it would be hard for her to go to school in Pakistan as the language is different.
·The applicant claimed that her youngest daughter, born in 2018 has still not had all her immunisations. The Tribunal asked if immunisations could be accessed in Pakistan, which she confirmed they could, but they are not free and given to everyone like Australia.
·The applicant said that they had sold their property in Pakistan, so they have nowhere to live. The Tribunal asked the applicant if she had family in Australia, which she said they do not. She stated that her and her husband’s parents and siblings all live in Pakistan. The Tribunal asked if they had to return to Pakistan could they stay with their family until they were re-established. The applicant confirmed they could but not for a long period.
·The applicant stated that they had accepted Australia as their country over other countries they could have migrated to, they have had their family here and consider it their home.
The secondary applicant’s evidence
The secondary applicant’s evidence was not detailed; however, it was overall, generally consistent with what the applicant told the Tribunal.
The secondary applicant stated that they physically went to the Wallace Hotel on three occasions. He outlined the first time they went he waited in the car with his daughter, however, he does not recall the date. He claimed that his wife went inside to meet with Andrea and Craig Wilson and that when his wife returned, she told him that they were happy for her to start the next week. However, they were not going to pay the wage they wanted so she did not agree to start.
The secondary applicant stated that the second time they went to the Wallace Hotel was when the visa was approved. He said that he again waited outside. However, the conversation with his wife and the Wilsons amounted to them telling his wife that they were a bit quiet and that they would call her when they wanted her to start. He said his wife kept calling, however, never got a response from the Wilsons.
The secondary applicant told the Tribunal that eventually his wife did speak to Mrs Wilson, who asked his wife for money saying that otherwise bad things would happen. He told the Tribunal that’s all he knows of the things regarding his wife’s visa sponsorship.
The secondary applicant asked the Tribunal to consider a number of factors regarding their personal circumstances on why the visa should not be cancelled. These included:
·He and his wife have spent a lot of time in Australia, putting in lots of time and effort working and that after one month of arriving in Australia he got a job. He started at a low level and by the end he obtained a supervisor role as he had worked hard.
·They own their own home.
·Their son is an Australian citizen.
·Their daughter is very good at school.
·Health care and education is better in Australia.
·They have only been back twice in 9 years.
·Their daughter has a problem with the food and water in Pakistan.
The Tribunal provided the applicant with additional time post hearing to supply documents to support claims made in particular in relation to the daughter’s claimed gastroenteritis issues, as the letters provided prior to the hearing did not, in the Tribunal’s view, support their claims in this regard.
Documents received post hearing
The applicant provided a range of documents to the Tribunal in support of the claims. The Tribunal has considered these documents in making its decision. These documents included:
·Medical Certificate signed by Dr Said K. Mirranay on 5 December 2012 for Miss Ayait Noor Saqib;
·Paediatric data information for Ayait Noor Saqib dated 19 December 2019;
·Medical referral letter from Dr Said K. Mirranay to Dr Peter Forrest, paediatrics for Miss Ayait Noor Saqib, dated 23 December 2019;
·Audiology report of Miss Ayait Saqib dated 4 October 2019;
·Department of Health Hearing Services Program referral for Ayait Noor Saqib dated 22 September 2019;
·Minaret College primary student report for Ayait Saqib dated 4 December 2019;
·2018 Victorian Premiers’ Reading Challenge Certificate of Achievement for Ayait Saqib;
·Swimming lesson certificate for Ayait Saqib dated 27 March 2019;
·Swimming lesson certificate for Ayait Saqib dated 27 July 2018;
·Student of the week certificate for Ayait Noor dated 6 December 2018;
·St John Ambulance Primary School First Aid Awareness Course certificate of attendance for Ayait Saqib dated 30 October 2019;
·Hands on Science certificate for Ayait dated 14 May 2019;
·eStatement screenshot for Complete Variable Home Loan showing transactions from 3 October 2019 to 3 December 2019. Note: does not include account details;
·Bankwest Complete Variable Home Loan Statement for period 5 January 2019 to 5 July 2019;
·Immunisation record for Muhammad Hassam Saqib (DOB 24 February 2017);
·Immunisation record for Uswa (DOB October 2018);
Does the ground for cancellation exist?
s.116(1AB) – Incorrect information
The facts before the Tribunal are as follows:
I.On 29 October 2015 an electronic “Application for Employer Nomination for a Permanent Appointment” (RSMS nomination) was submitted to the Department by migration agent Mehdi M Shamraiz of Aus Migration and Education;
II.This RSMS nomination application identified the applicant for the position of Chef;
III.The nominating business was “The Trustee for Wilson Business Trust” trading as the Wallace Hotel;
1. Migration agent Mehdi M Shamraiz confirmed Mr Sackl provided him with all supporting nomination documents and information regarding the RSMS nomination which was submitted to the Department;[7]
2. The RSMS nomination in relation to the applicant was approved;
3. The applicant’s subclass 187 visa application was granted based on the RSMS nomination approval;
VII.Following Department inquiries, after the applicant’s subclass 187 visa was granted, Andrea and Craig Wilson, the owners of the Wallace Hotel, confirmed to the Department that they never employed the applicant or sponsored her. Further:
• They never submitted any documents to the Department for the applicant;
• False documents with forged signatures were provided to the Department by a third party without their knowledge.
[7] The Department contacted Mr Shamraiz as part of its inquiries. See page 8 of the delegate’s decision.
The applicant has maintained that she was of the belief that the job offer and RSMS nomination with the Wallace Hotel was genuine which had been arranged by Mr Sackl in conjunction with the Wilsons as they were good friends of his. Further, she had no part in obtaining the documents relating to the RSMS nomination or its lodgement as this was all facilitated by Mr Sackl.
Notwithstanding the applicant’s claimed belief and her assertions that the job offer and RSMS nomination were genuine, the Wilsons have made statements to the Department that they were not and that the documents submitted in support of the RSMS nomination application were false with forged signatures and the RSMS nomination was lodged with the Department by a third party without their knowledge.
The Department’s decision record compared signatures on the employment contract and the Form 956 purporting to be from and signed by Craig Wilson that were submitted with the RSMS nomination application. The delegate concluded that the signatures on these two documents matched each other, however they appeared to be exact pasted digital copies of the same signature, indicating the documents were not individually signed. Furthermore, the Department concluded these two signatures also did not match specimens of Mr Wilson’s signature from three other employment contracts lodged with the Department for previous matters. The Department inserted into the decision record specimens of the referenced signatures for comparison as follows:
Signatures from employment contract and Form 956:
Signatures of Craig Wilson previously submitted to the Department:
The Tribunal agrees with the delegate’s observations that the signatures on the employment contract and Form 956, which formed part of the RSMS nomination application, are matches and appear to be exact copies. The Tribunal further agrees with the delegate’s observations that these signatures do not match other specimens of Mr Wilson’s previous signatures held on record by the Department.
Although the Tribunal is not a forensic handwriting or signature expert, even to a layperson the signatures on the employment contract and the Form 956 do not resemble earlier legitimate signature specimens of Mr Wilson.
Given Mr Wilson’s statements to the Department that he had not provided documents to the Department for the nomination of the applicant and given the apparent forged signatures on the Form 956 and employment contract, the Tribunal is satisfied the Wilsons did not provide documents to submit the RSMS nomination for the applicant. The Tribunal is therefore satisfied that incorrect information was submitted for the RSMS nomination application.
The applicant made claims that in her final telephone call with Mrs Wilson, which occured in May 2017, that Mrs Wilson requested $30,000, otherwise ‘trouble would happen’. The implication of this claim is that the Wilsons had up until this telephone conversation supported the application and if the money was not paid by the applicant, they would inform the Department that the applicant had not commenced employment within the 6 months of the visa being granted.
However, the Tribunal does not accept this claim by the applicant or her husband. As per the Department’s decision record the Wilsons confirmed to the Department much earlier, on 28 February 2017, that they had never submitted any documents to the Department for the applicant, never employed her and false documents were used. As such, the Tribunal is of the view this claim by the applicants is not plausible, given the Wilsons had already informed the Department several months earlier, before any allegation they requested money from the applicant and that non-payment would result in ‘trouble’.

The Tribunal has formed the view, based on the evidence before it the Wilsons did not employ the applicant, nor did they authorise an RSMS nomination to be submitted for their business, the Wallace Hotel, to nominate the applicant in the position of Chef.
The Tribunal accepts that the Migration Agent Mehdi M Shamraiz of Aus Migration and Education lodged the nomination application through the Department’s online application system, and he did so in good faith based on information and documents supplied to him by Mr Sackl. There is no evidence before the Tribunal that the migration agent was aware that the documents or information were incorrect at the time the RSMS nomination was lodged.
A visa may be cancelled under s.116(1AB) if incorrect information was given by or on behalf of the visa holder to one of the following: an officer; authorised system; the Minister; or any other person, Tribunal or body performing a function or purpose under the Act, or an administrative process in relation to the Act. The incorrect information must have been taken into account in, or in connection with, the making of either a decision that enabled the visa holder to make a valid visa application or a decision to grant that person a visa, whether that valid visa application or grant related to the current visa or a previous visa that was held. The giving of the incorrect information must not be covered by Subdivision C of the Act (ss.97– 115). The ground applies whenever the incorrect information was given.
As the incorrect information being relied on for s.116(1AB) was not provided by the applicant for the subclass 187 visa or for previous visas held and because it was provided in relation to the RSMS nomination the Tribunal is satisfied that the incorrect information is not covered by Subdivision C of the Act and ss.97–115. Therefore s.109 cancellation powers do not apply.
Subsection 116(1AB) is set out as follows:
116(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) incorrect information was given, by or on behalf of the person who holds the current visa, to:
(i) an officer; or
(ii) an authorised system; or
(iii) the Minister; or
(iv) any other person, or a tribunal, performing a function or purpose under this Act; or
(v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
(b) the incorrect information was taken into account in, or in connection with, making:
(i) a decision that enabled the person to make a valid application for a visa; or
(ii) a decision to grant a visa to the person; and
(c) the giving of the incorrect information is not covered by Subdivision C.
This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
The Tribunal notes that s.116(1AB) does not require the visa holder to be aware the information was incorrect for it to be enlivened nor does the subsection require the applicant themselves to have personally given the incorrect information. It is sufficient that incorrect information was given on the ‘visa holder’s’ behalf.
What is less clear is how s.116(1AB)(a) should be constructed in relation to a separate nomination application not submitted by the visa holder where incorrect information was provided. From this, the question arises whether information given for the purpose of the nomination application can be considered to have been given on behalf of the visa holder if they were not the applicant.
The Tribunal is conscious that the RSMS Nomination application to which the incorrect information relates was not an application made by the applicant. Any employer sponsored nomination whether it is for a permanent or temporary visa is made by an employer, not the related visa applicant, the exception would be self-sponsorship which is not the case here.
The applicant did not explicitly make a claim to the Tribunal that she is not caught by s.116(1AB)(a) because the incorrect information relates to a nomination application made by the Wallace Hotel. The applicant could have submitted that the incorrect information was not given, by or on behalf of her, as she had no control over information submitted on behalf of an entity to which she has no authority or relationship to, such as shareholding or directorship. The Tribunal has however turned its mind to whether s.116(1AB)(a) could operate in such a manner, given the applicant’s claim that she did not provide the information to submit the nomination, it was provided by Mr Sackl to the migration agent who submitted the RSMS nomination application.
There are two beneficiaries for a nomination approval: the employer, as they will gain an employee and the visa applicant who will gain a visa.
In this matter the RSMS nomination application was submitted on behalf of the Wallace Hotel, to nominate the applicant. Although it was submitted on behalf of the Wallace Hotel, it was submitted without the proprietors’ knowledge. Its approval resulted in the applicant gaining the benefit of permanent residency. The Wallace Hotel did not gain any benefit.
The Act and regulations are silent, and policy provides no guidance on whether incorrect information given for the purposes of an Employer Sponsored Nomination application, which resulted in its approval, can then be used for the purposes of cancellation under s.116(1AB) for a separate visa application. The Tribunal is of the view that it can, for the following reasons.
Although a nomination application is a separate application to that of a visa application, they are directly related. Without an approved nomination, the visa application cannot be successful. Furthermore, the nomination is directly linked to a specific visa applicant. It cannot be made at large, without the visa applicant being known. They are therefore, in the Tribunal’s view, intrinsically related.
The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill that introduced s.116(1AB) into the Act outlines the purpose of the provision is to provide that incorrect information must not be given at any time, not just where the information is provided as part of a person’s visa application.
The provision was introduced to strengthen the integrity of Australia’s migration programme, including amendments to better capture particular kinds of criminal activity and non-citizens who engage in migration fraud.
The Explanatory Memorandum provides an example of where incorrect information may be given:
…incorrect information is given which informs the grant of a visa and does not require an application to be made or which is granted through ministerial intervention, or incorrect information given during an administrative process in relation to the Act for the purpose of responding to Australia’s international obligations to the person under a relevant International Instrument.
In the Tribunal’s view, taking into consideration the purpose of s.116(1AB) as detailed in the Explanatory Memorandum, incorrect information simply needs to be information given which informs that grant of the visa and can relate to incorrect information provided in a linked and related nomination application. In this case it was information given as part of the related RSMS nomination, the approval of which informed the grant of the visa for the applicant.
As such the applicant’s claims that she believed the RSMS nomination to be genuine and that she had no part in the provision of the documents or lodgement of the nomination application does not circumvent the application of s.116(1AB) for incorrect information provided in the related RSMS nomination.
Given the Wilsons’ statements to the Department, along with the applicant’s claims regarding Mr Sackl; that he arranged the RSMS nomination on the Wallace Hotel’s behalf and confirmation by the migration agent he received all documents through Mr Sackl for the RSMS nomination application. The Tribunal is led to conclude that Mr Sackl caused incorrect information to be given on behalf of the applicant by facilitating the provision of incorrect information to the migration agent who subsequently lodged the RSMS nomination application through the Department’s online application system.
As such, the Tribunal finds pursuant to s.116(1AB)(a)(ii) incorrect information was given on behalf of the applicant to an authorised system, and that authorised system was the online RSMS nomination application.
The incorrect information must have been taken into account in, or in connection with, the making of either a decision that enabled the visa holder to make a valid visa application or a decision to grant that person a visa, whether that valid visa application or grant related to the current visa or a previous visa that was held. The giving of the incorrect information must not be covered by Subdivision C of the Act (ss.97–115). The ground applies whenever the incorrect information was given.
The incorrect information given in the RSMS nomination application in relation to the applicant consequently led to the applicant being granted a subclass 187 visa application. The RSMS nomination approval impacted the assessment of relevant criteria for the applicant’s subclass 187 visa application. Specifically, in relation to subclauses:
·187.233(2): As the nomination does not appear to have been made by the person who was going to purportedly employ the visa holder;
·187.233(5): As the purported employer claims they did not lodge the nomination or sign an employment contract with the visa holder, this indicates the nominated position was not available to her.
As such, the Tribunal finds pursuant to s.116(1AB)(b)(ii) the incorrect information provided in the RSMS nomination application was taken into account in making a decision to grant the applicant her subclass 187 visa.

100. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1AB) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
101. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the PAM3 ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.
102. The applicant’s purpose of her travel was initially to complete her studies, which she did.
103. Leading on from her studies, she then applied for a subclass 457 visa based on a nomination with the Good Luck Tea House for the position of Cook. The applicant however, never commenced working with the Good Luck Tea House after her subclass 457 visa was granted. Albeit she remained on the visa for approximately 18 months enjoying its benefits without informing the Department she had not commenced working there. The Tribunal will address further into this decision its views on compliance with this visa and breach of condition(s), however, for this consideration, the Tribunal is of the view that she did not fulfil the purpose of the subclass 457 visa, that was granted to her as she never commenced working with the Good Luck Tea House.
104. Prior to the subclass 457 visa ceasing, the applicant applied for a subclass 187 visa. The reason this visa was granted was because the related RSMS nomination had been approved for the applicant to work in the position of Chef at the Wallace Hotel. As the Tribunal has found, this nomination was approved based on incorrect information, as the nomination application was submitted without the knowledge of the proprietors and forged documents were supplied in support of the application.
105. The applicant never commenced work at the Wallace Hotel in the position of Chef which was the purpose of the grant of the subclass 187 visa.
106. Although the applicant has qualifications as a Cook/Chef which she obtained in Australia, as per her evidence, she has never worked in the vocation. Even though she has had two visas granted to her to do so. She made claims that she ‘could’ get a job elsewhere and provided details of jobs she claimed she had applied for, however, she in her own evidence said she had not worked as a Cook/Chef.
107. The Tribunal considers that the applicant has not fulfilled the purposes of the last two visas that were granted to her as she has not worked for the nominating employers or secured work with other employers.
108. The applicant is not currently working and has not obtained employment in her vocation.
109. The Tribunal notes that the objectives of the subclass 457 and the subclass 187 visas are to fill skills shortages as listed on the skilled occupation list(s) and that if an applicant has not worked in the position which the visa was granted on, nor secured a nomination with a different employer, it demonstrates that the purpose of the visas has not been met.
110. The Tribunal is of the view that as the applicant is not working in her vocation, and has in fact never done so according to her evidence, this demonstrates that there is no compelling need to remain in Australia for work purposes as she is not contributing to the skilled work force, the purpose of which her last two visas were granted on for her to remain.
111. These factors weigh in favour of the visa being cancelled.
The extent of compliance with visa conditions
112. The applicant’s evidence is that Mr Sackl assisted her to obtain the nomination with the Good Luck Tea House the basis of which her previous held subclass 457 visa was granted on. The applicant claimed she responded to a job advert on Gumtree for the position and that she paid Mr Sackl $1500 in recruitment fees for the placement.
113. The applicant claimed that the position was genuine and she was under the impression there was a position for her however, once the visa was granted the owners of the Good Luck Tea House informed her there was no work for her.
114. A co-director of Good Luck Tea House denied that the applicant had ever worked for the business or they had nominated her for a visa.[8]
[8] This information is contained within the Department’s decision record at page 25.
115. The applicant did not inform the Department that she had not commenced working with the Good Luck Tea House.
116. Condition 8107 was attached to the applicant’s subclass 457 visa. Of relevance is condition 8107(3)(b) which requires that if a subclass 457 visa holder ceases employment with their visa sponsor, the period during which the holder ceases employment must not exceed 90 consecutive days. If a subclass 457 visa holder is not employed by an approved sponsor for more than 90 days then the subclass 457 visa holder’s visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa.
117. When the Tribunal discussed the applicant’s compliance with Condition 8107 during the hearing, the applicant told the Tribunal that she did not understand the process very well and relied on advice given by her migration agent. She claimed to have spoken to her migration agent but was advised not to worry as she still had time left on her student visa.
118. Notwithstanding the applicant’s claims about not understanding the process very well, and her claim she relied on advice from a migration agent it does not overcome the requirement she must have complied with Condition 8107 attached to the subclass 457 visa.
119. The Tribunal has formed the view, based on the information the applicant has provided, that the applicant was in breach of condition 8107(3)(b) of her subclass 457 visa from mid-August 2015 until the grant of her subclass 187 visa on 12 October 2016. The evidence available to the Tribunal indicates that more than 90 consecutive days without an approved subclass 457 visa sponsor were exceeded as the applicant never commenced employment.
120. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and gives it considerable weight.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
121. The applicants put forward that their eldest daughter when in Pakistan suffered from gastroenteritis issues because of the food and water, as such they could not return to live in Pakistan because of this. The applicant provided to the Tribunal two letters from doctors in Pakistan with test results and clinical notes attached from when the applicants last visited Pakistan in 2018. These letters provided the following detail:
·The letter from Dr Sayed Hasan Gardezi dated 2 August 2018 outlines the applicant’s daughter was treated for contact dermatitis;
·The letter from Dr Maxhar Tarar dated 21 September 2018 details that the applicant’s daughter was treated for fever and an upper respiratory infection. Clinical notes attached to the letter indicate that the child was not accepting food.

122. The medical evidence provided did not support the claim that the applicant’s daughter suffered from gastroenteritis issues as claimed, rather she experienced and was treated for a bout of dermatitis and an upper respiratory infection. The clinical notes attached to Dr Tarar’s letter regarding the upper respiratory infection indicate the applicant’s daughter was not taking food. In the Tribunal’s view however, this is not a diagnosis that there were gastroenteritis issues as claimed because of the food and water in Pakistan, rather the not taking of food was a symptom of the upper respiratory infection as that is the context the medical note was provided in.
123. The Tribunal discussed with the applicant during the hearing that the medical evidence provided from the last visit to Pakistan did not support a diagnosis of a gastroenteritis condition as claimed, however, said that it would allow time post hearing to provide evidence.
124. After the hearing the Tribunal received a letter from the applicant’s daughter’s treating GP dated 19 December 2019 which stated:
Miss Saqib who is severely underweight and weak, her blood tests from Pakistan is showing she is very anemic, I don’t know the cause of her weakness and being underweight and anemic. I have I initiated further investigation for the child. I have also referred her to see Pediatric specialist. In my opinion this child will deteriorate and even she has risk of dying in Pakistan.

125. The Tribunal’s view of the letter from the GP is that it is not a diagnosis of a gastroenteritis condition as the applicants claimed their daughter was suffering and so could not return to Pakistan. It details that the child is underweight and that blood tests from approximately 18 months prior taken in Pakistan demonstrate the child was then anaemic which the GP does not know the underlying cause of.
126. The GP letter also provides opinion that the child will deteriorate and is at risk of dying in Pakistan, however, that opinion is not supported with the reasoning it was formed or the basis or qualification the GP had to comment on the Pakistan health system for such an opinion to be given weight. The Tribunal accepts from this letter however, the child is underweight and blood results from 18 months prior demonstrated she was anaemic. These are different health issues to the claim made on why the applicants cannot return to Pakistan. There is no contemporary evidence if the anaemia has resolved or the child is still suffering from it.
127. The GP provided a copy of the referral that was provided to the paediatrician, Dr Peter Forrest, dated 23 December 2019 which stated:

Thank you for seeing Miss Ayait Noor Saqib, 7 years of age for opinion and management, of her being severe underweight, she had recurrent gastroenteritis, URTI, when she was in Pakistan, my concerns is her weight, please access.

128. The Tribunal notes that in the referral letter the GP was mainly concerned about the daughter’s weight, although it did report claimed gastroenteritis issues whilst in Pakistan.
129. The referral, however, does not provide a diagnosis that gastroenteritis issues exist as claimed, it merely reported them. Furthermore, the applicant has not provided a report from the paediatrician or other medical specialist with a diagnosis and/or medical report regarding the claimed issues. The Tribunal made it very clear at hearing that for it to give weight to the claim the daughter cannot return to Pakistan because of gastroenteritis issues, that the Tribunal required a diagnosis and supporting medical information. Given the seriousness of the claim the Tribunal provided the applicants additional time to gather such evidence to substantiate their claim. As at the time of writing this decision, no further information has been provided. As such, the Tribunal has therefore given this claim no weight in favour of or against cancellation and treats this consideration as neutral as it is unsubstantiated.
130. However, the Tribunal does give some weight against cancellation on the basis the child is underweight and previous blood cultures indicate the child was anaemic which suggests there is a possible underlying, albeit undiagnosed, condition. The weight apportioned to this consideration is reduced somewhat on the basis the applicant was referred to a paediatrician for investigation, the applicant has not provided any further evidence to the Tribunal relating to the child’s current health nor a diagnosis to explain what is causing the child to be underweight. Further, and as discussed below the child will be able to access health care in Pakistan.
131. The applicants claimed that their children would not be able to access the level of health care in Pakistan they would be able to enjoy in Australia, and as such should be considered by the Tribunal a reason on why they cannot return.
132. The Tribunal notes that when the applicants last returned to Pakistan, they were able to access medical care for their daughter. The Tribunal asked if they would be able to access health care for themselves and their children if they returned, to which they indicated they would. The applicants made a claim that their daughter suffered from a hearing condition and as such, needed treatment in Australia. The Tribunal asked the applicants if they could access treatment for any potential hearing issues in Pakistan, to which they confirmed they could. The Tribunal asked if they or their other children suffered from health issues, to which they stated they did not, only their eldest daughter.
133. The applicants made further claims they could not return to Pakistan because their children had not been fully immunised. The Tribunal asked the applicants if they could access immunisations in Pakistan for their children, to which they confirmed they could however, they are not free like they are in Australia.
134. The Tribunal acknowledges that Pakistan is a developing country and that the World Health Organization ranks the country 122 out of 190 Countries and that they do not enjoy a universal health care system like Australia.[9] However, the evidence before the Tribunal is that the applicants had in the past received treatment for their daughter for dermatitis and an upper respiratory infection whilst in Pakistan. Furthermore, that their daughter underwent a blood test as part of a diagnostic process. This indicates to the Tribunal that medical diagnostics and treatment is available to the applicants and their children, as in the past they have accessed medical diagnostics and treatment whilst there. Furthermore, the applicants gave evidence that they would be able to access medical treatment. As such, the Tribunal gives this claim no weight in favour of or against cancellation and treats this consideration as neutral.
[9] World Health Organization, World Health Report 2000; Geneva, 2000.
135. The applicants claimed that financially they would be impacted if they were required to return to Pakistan as they own their own home in Australia and have a mortgage. Furthermore, that they sold their property in Pakistan so have no home to return to. The applicants provided evidence of their home ownership in Australia. The Tribunal accepts that if they were required to sell their home that it would be inconvenient. However, the Tribunal does not accept that selling their property in Australia would result in financial hardship. Furthermore, although the applicant claimed they did sell their property in Pakistan and no longer had a home there, she gave evidence to the Tribunal her and her husband’s parents and siblings still reside in Pakistan and they could live with them whilst they re-establish themselves in Pakistan.
136. The applicants claimed that they had spent a lot of time in Australia and worked very hard over the years. The Tribunal notes that the applicant only worked for a short period after arriving in Australia on a student visa in a plastics factory, however, has not worked since, not even in the vocation she is qualified in. The Tribunal acknowledges that the secondary applicant was working in a plastics factory for several years and did work his way up to a supervisor position, however, he has since left that role and is now working as a taxi driver. The Tribunal acknowledges that the secondary applicant has engaged in the Australian workforce at a semi-skilled level, however, has not engaged in an occupation that features on any of the occupational lists that would attract visa sponsorship by an employer, or an independent visa on skilled grounds. The Tribunal further acknowledges, that although the secondary applicant has only been employed in semi-skilled roles, that the renumeration for these roles is likely to be more than he would be able to earn in Pakistan. As such, a return to Pakistan would result in a loss of economic benefit to the applicants through the drop in likely earnings.
137. The applicants claimed that their children will be disadvantaged in respect to their education if they were to return to Pakistan as they claim the level of education is not as good as Australia. They further claimed that as their children are taught in English in Australia, they will be disadvantaged if they return to Pakistan as Urdu is the main language. The applicants made claims that their eldest daughter is doing very well at school and that if she had to attend school in Pakistan it would impact her learning and she would find it difficult to fit in because she is used to school in Australia and being taught in English.
138. The Tribunal notes that the applicants’ two younger children have not commenced education yet. The applicants made claims that their children would find it difficult to return to Pakistan as they don’t know the language. However, they also gave evidence that they speak Urdu at home, not English. The Tribunal does not consider their claim their children won’t know the language as plausible given they speak Urdu at home. However, the Tribunal does acknowledge for the applicant’s eldest daughter at least, a transition from primary school in Australia to Pakistan would likely have an impact emotionally and a period of adjustment would occur in transitioning to a new system. The Tribunal notes from the educational reports that the applicant’s eldest daughter attends a private Islamic school in Australia so is not attending a free public school.
139. The Tribunal notes that Pakistan does, like Australia, have a free and compulsory education system.[10] The Tribunal also understands that Pakistan has private schools, like they send their daughter to in Australia. If the applicants did not want to send their children to a state-run school in Pakistan, they would be open as they currently do in Australia for their school aged daughter, to send their children to a private school if they wish to have a different type of education outside the public school system in Pakistan. Notwithstanding this, education is available in Pakistan to tertiary level – whether it be through the public-school system or private, which there is no evidence before the Tribunal the applicant’s children could not enjoy.
[10] Article 25-A of Constitution of Pakistan obligates the state to provide free and compulsory quality education to children of the age group 5 to 16 years.
140. The Tribunal acknowledges that the applicants may experience hardship, including financial and emotional hardship, if the visa is cancelled and they were to return to Pakistan. There would be costs in selling their Australian home and relocating. The applicants have spent significant time in Australia and consider it their home where they wish to raise their family. Furthermore, the applicants’ eldest daughter would likely experience a period of adjustment settling into a new school system. These factors weigh in favour of not exercising the discretion to cancel the visa but given the findings of the Tribunal that some of the hardship experienced by the applicants or their children will only be short term, the Tribunal gives this consideration less weight than it otherwise would have.
Circumstances in which ground of cancellation arose
141. The Department received information from a third-party source alleging that the sponsorship provided to the applicant was not genuine. Further, that the applicant was knowingly involved in a paying for visa sponsorship scheme for her subclass 187 visa and her previous subclass 457 visa and that bogus documents were submitted as part of these applications.
142. Following receipt of this allegation the Department made inquiries with the owners of Good Luck Tea House and the Wallace Hotel.
143. The owners of both the Good Luck Tea House and the Wallace Hotel confirmed to the Department that they did not employ or sponsor the applicant.
144. The owners of the Wallace Hotel made a statment to the Department that they had not provided documents to support the RSMS nomination application and this was done by a third party without their authorisation.
145. The Department found that incorrect information was provided in respect to the RSMS nomination for Wallace Hotel which lead to the grant of the applicant’s subclass 187 visa, as such the Department cancelled the applicant’s subclass 187 visa under s.116(1AB).
146. The applicant claims that both the nominations with the Good Luck Tea House and the Wallace Hotel, to her knowledge were genuine. She further claimed that Mr Sackl the recruitment consultant organised the nominations to allow her to apply for the related visas.
147. The applicant claimed that she paid Mr Sackl $1500 in recruitment fees in relation to the position with the Good Luck Tea House. She however claims she did not pay him any fees to secure the position with the Wallace Hotel, and he arranged this position as the one with the Good Luck Tea House did not eventuate.
148. Although the applicant has maintained throughout the cancellation and review process that she has not done anything wrong, and she had no part in the nomination process for the Good Luck Tea House and the Wallace Hotel and that the positions were genuine, the Tribunal is not persuaded by the applicant’s claims that she was of the belief the position(s) were genuine.
149. The applicant has been nominated by two separate businesses which have resulted in visas, however both claim that she never worked for them, or that they nominated her. The applicant also conceded that she has never worked for either business. The Tribunal finds it highly unusual for the applicant to have been nominated by two businesses where this has occurred and where she never commenced working for them, although visas were granted.
150. The common link with these two businesses is Mr Sackl, whom the applicant claimed arranged both nominations for her.
151. Given the owners of both businesses in connection with the nominations denied ever employing or nominating the applicant, the Tribunal is of the view migration fraud has occurred and it was likely orchestrated by Mr Sackl.
152. Although the applicant denied that she participated in migration fraud the Tribunal has formed the view that the applicant was complicit given the significant benefit she gained without ever working for the nominating businesses.
153. The applicant gave evidence that she had not worked in her occupation. The Tribunal finds it unusual and not likely that two separate businesses would have agreed to nominate an individual for a visa, particularly permanent residency when they had not worked in the occupation prior.
154. During the hearing the Tribunal discussed with the applicant that she was the one to gain most out of the nomination approvals and especially the RSMS nomination with the Wallace Hotel as it resulted in permanent residency for her and her family in an occupation she had never worked in.
155. When asked to comment on this as the businesses had not gained any benefit from nominating her as she never commenced work with either of them, the applicant doubled down and said she did not know why the businesses had supported her, she did not arrange that part and as far as she knew they were genuine. The applicant did, however, reiterate the claim that Mrs Wilson of the Wallace hotel asked her to pay $30,000, which the Tribunal has already found not plausible.
156. Given the significant benefit the applicant had to gain from the nomination approval with the Wallace Hotel the Tribunal is of the view that the applicant was aware that the nominations arranged through Mrs Sackl were not genuine and done without the knowledge of the business owners.
157. The cancellation has arisen out of incorrect information and as the Tribunal has stated, it is of the view migration fraud as occurred. The Tribunal has therefore given this factor significant weight in favour of cancellation.
Past and present behaviour of the visa holder towards the Department
158. The Tribunal has had regard to the applicant’s conduct in relation to the Department. There is no evidence that the applicant has been uncooperative with the Department.
159. The Tribunal has therefore given weight in favour against cancellation.
Whether there would be consequential cancellations under s.140
160. The cancellation of the visa will result in consequential visa cancellation of any held visas by the members of the applicant’s family unit.
161. In the opinion of the Tribunal, consequential cancellation is not a reason for setting aside the cancellation as it is an intended consequence of the legislation.
162. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences
163. If the applicants’ visas are cancelled, they would become unlawful non-citizens and be liable to be detained under s.189 of the Act unless granted another visa. There is no suggestion that they would be detained indefinitely because as Pakistani citizens there is no evidence they could not return to Pakistan. The Tribunal acknowledges that unless the applicants are granted another visa, they may be subject to possible removal from Australia and they may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone. Nevertheless, the Tribunal notes that these are the intended consequences of the legislation.
164. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
165. Policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights.
166. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements as a result of cancellation.
167. The applicants did not suggest that non-refoulement obligations would be breached as a result of the visa cancellation. The applicants have travelled freely between Australia and Pakistan with their most recent return to Pakistan occurring in mid-2018. There is no evidence before the Tribunal, and nor did the applicants claim, they would be subject to harm if they returned to Pakistan to live. The Tribunal has therefore given this factor no weight in favour of or against cancellation.
168. The applicant has raised that her son is an Australian citizen, therefore he has a right to be able live in Australia and enjoy the education and health systems that are available to citizens. She has also made claims that her other children should also enjoy the same benefits as it would be in their best interests.
169. The Tribunal makes the following observation regarding the applicant’s son’s citizenship. Section 34 of the Citizenship Act 2007 allows the Minister to revoke a person’s citizenship in circumstances involving offences or fraud, however this provision does not apply to persons who automatically acquired citizenship at birth under s.12 as the applicant’s son has.
170. Section 36 of the Citizenship Act 2007 also provides for the Minister to revoke a child’s citizenship if his or her responsible parent ceases to be an Australian citizen under ss.33, 34 or 34A, however this provision does not extend to parents who cease to be permanent residents.
171. The subclass 187 visas of the applicants ceased to be in effect from the date of cancellation onwards, as per s.82(1) of the Act. The cancellation does not have retrospective effect, rendering the visa to have legally never been in effect. Consequently, the applicant was in fact a ‘permanent resident’ as at the time her son was born for the purposes of s.12(1)(a) of the Citizenship Act 2007.
172. As a consequence of the workings of the Act and regulations and the Citizenship Act, the applicants son is extremely fortunate that he retains his citizenship even though at the time of birth his parents permanent residency was only in effect because of incorrect information and migration fraud.
173. The Tribunal accepts that the children of the applicants are innocent third parties in that they have played no role in the situation, however, they are still very young, have spent limited time in Australia and the Tribunal is of the view they will be able to adapt to life in Pakistan with the assistance of their parents.
174. If the visa is cancelled the Tribunal accepts that the Australian citizen child would need to return to Pakistan with his parents. The cancellation however will not cause the family unit to be separated. The Australian citizen child can remain with his parents and siblings and reside in Pakistan as part of the family unit. The Tribunal notes that the applicant’s son is also eligible for Pakistani citizenship by virtue of s.3 of the Pakistani Citizenship Act 1951, whilst still retaining and enjoying Australian citizenship as per s.14 of the Pakistani Citizenship Act 1951.

175. Pakistan ratified the CRC on 12 November 1990. As detailed earlier in the decision education is free and compulsory, so the applicant’s children would upon return to Pakistan be able to access education, which is consistent with Article 28 of the CRC. The Tribunal is therefore satisfied that the children would have access to education in line with the CRC. Furthermore, the applicant’s Australian citizen child would be free to return to Australia to continue education, including high school or higher education at a future point. The applicant did herself obtain higher education qualifications in Australia, which the Australian citizen child could do, whilst also enjoying the benefits of doing so as a Citizen with lower fees as a domestic student and access to fee help. The Tribunal is of the view that the children would not be disadvantaged as claimed by the applicant. The children will have access to education in Pakistan and their Australian citizen child can when he is of an independent age return to Australia without his parents and access education.
176. Regarding accessing health care, this is dealt with in Article 24 of the CRC. The Tribunal has already considered access to health care in Pakistan. Given its earlier findings the Tribunal is of the view that the Australian citizen child and other children of the applicant will have access to health care in Pakistan. There is nothing to suggest that the children would not receive health care, and to the contrary would, given the applicants have given evidence they can access health care in Pakistan and they have in the past for their daughter when last there.
177. The Tribunal has considered Australia’s obligations pursuant to the CRC and acknowledges that in taking actions concerning children, the best interest of the child shall be a primary consideration. Given the relatively young age of the children, the Tribunal considers that it is in the best interest of the applicant’s children to be with their parents and for the family unit to remain intact. As discussed above, the Tribunal is satisfied that the family can reside and live together in Pakistan.
178. The Tribunal accepts that the applicant wants her children to benefit from Australia’s education and health system and gives some weight to these factors in the applicant’s favour to not cancel the visa. The Tribunal is however not satisfied that the children will be deprived of an education or basic levels of health care in Pakistan.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
179. The applicants gave evidence that beyond their family unit they have no family in Australia. All their family is in Pakistan. They however own their home and the secondary applicant is working as a taxi driver.
180. The Tribunal further acknowledges that the applicants have spent significant time in Australia and would have formed friendships here and they have given evidence they consider it their home and a place they wish to raise their family.
181. Further, their son is an Australian citizen which is a strong tie to Australia. However, as already discussed the Tribunal is satisfied that the Australian citizen child will not be disadvantaged if returning to Pakistan. The child will remain with the family unit, will have access to health care and education in Pakistan and when he is of an independent age, he will have a choice and opportunity to return to Australia as a citizen.
182. The Tribunal does give these claims weight in favour of not cancelling the visa.
Any other relevant matters
183. The applicant sent an email to the Tribunal on 25 March 2020 that as they did not have permeant residency, they were unable to obtain financial assistance from the government and were struggling financially as her husband was not getting much work. She also made a claim that she cannot go back in Pakistan as there is no medical facilities to tackle Covid-19.
184. The Tribunal acknowdelges that the Covid-19 pandemic has caused uncertain times, not just for the applicant but it impacts the entire global population and will have far reaching and significant economic consequences for many years to come.
185. Regarding the claims that they cannot go back to Pakistan as there are no medical facilities to tackle Covid-19, this claim is unsubstantiated. However, the Tribunal does acknowledge that Australia given its higher world health ranking is likely better equipped to handle a large-scale infection outbreak, although there is no evidence before the Tribunal at the time of writing that Pakistan has had a large-scale outbreak of the likes being experienced in the United States of America and multiple European countries.
186. The Tribunal acknowdelges that the applicants would if the visa was not cancelled be eligible for Australian government financial assistance. It also acknowdelges that given the relatively low infection rate Australia has experienced and its containment of community spread thus far, the applicants would likely have less risk of contracting the virus if they remained in Australia than most other countries in the world.
187. The Tribunal therefore gives some weight in favour of the applicants for this to not cancel the visa.
Conclusion
188. The Tribunal has considered all the evidence before it and has carefully weighed up all the relevant circumstances in this case. The Tribunal gives weight to the fact that one of the applicant’s children is an Australian citizen. The Tribunal also gives some weight to the time the applicant, her husband and her children have spent in Australia. It also acknowledges and gives weight to the applicant’s desire to live and raise her children in Australia where they can enjoy high quality education and health services. Against these factors however is the fact that the applicant was granted a permanent sponsored employer visa based on incorrect information, without which she would not have been entitled to the grant of the visa.
189. While the Tribunal has accepted that the applicant did not herself submit the RSMS nomination application, the evidence strongly suggests that the applicant was aware that the employment with the Wallace Hotel was not genuine and had been contrived for the purposes of securing a migration outcome for her and her family. This finding is supported by the fact she had previously been granted a subclass 457 visa under similar circumstances with the Good Luck Tea House where the owners denied the applicant ever worked for them or sponsored her. Although the Tribunal is not making a finding on the subclass 457 issue, it does demonstrate a pattern of behaviour that supports the Tribunal’s finding migration fraud has occurred. The Tribunal considers the breach in this case to be serious and significant, and one which seriously undermines the integrity of Australia’s migration program. The Tribunal considers the factors in favour of cancelling the visa outweigh those against cancellation of the visa.
decision
190. The Tribunal affirms the decision to cancel the first named applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.
191. The Tribunal has no jurisdiction with respect to the other applicants.
Cathrine Burnett-Wake
Member

[2020] AATA 2568

18 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice