Shahi (Migration)

[2024] AATA 3721

Shahi (Migration) [2024] AATA 3721 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anup Shahi

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2409481

HOME AFFAIRS REFERENCE(S):          BCC2023/7396659

MEMBER:Karen McNamara

DATE:25 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 25 September 2024 at 1:54pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) visa – Subclass 189 Skilled – Independent – applicant convicted of criminal offences – applicant failed to disclose offences – financial hardship – contribution to the Australian community – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 5(1), 101 – 105, 107-109, 140, 360
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant (Mr Anup Shahi) has provided the Tribunal a copy of the delegates decision record. It records on that on 11 September 2023, the applicant was granted a Skilled Independent (subclass 189) visa on the basis that he was a member of the family unit of the primary applicant, Ms Asmita Shrestha. Subsequent to the granting of approval of the visa, it was brought to the Department’s attention that the applicant in January 2023 was charged with four fraud offences under the Crimes Act 1900.

3. On 1 September 2023, the applicant appeared before Parramatta Local Court where he pleaded guilty to fraud offences. On 22 February 2024, the applicant pleaded guilty and was convicted of said offences as per a plea deal.

4. At the time the applicant lodged the combined Skilled Independent visa application on 1 June 2023, he had been charged with the fraud offences and was awaiting appearance before Parramatta Local Court.  The applicant, however did not provide this information on his application to the Department and in response to the question “ Has any applicant ever been charged with any offence that is currently awaiting legal action?” responded “No”.

5. After pleading guilty on 1 September 2023 and subsequently convicted and sentenced on 22 February 2024, the applicant failed to notify the Department of his change in circumstances. Despite the Department issuing reminders to him (on 1 June and 11 September 2023) of his obligations under sections 104 and 105 of the Migration Act, the applicant did not inform the Department of the incorrect information provided in his visa application. Neither did he provide correct information by failing to inform the Department of the changes to his circumstances due to being convicted of the offences and having penalties imposed on him by the Court.

6. On 12 March 2024, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC). This notice was reissued on 14 March 2024, to correct an omission in the previous NOICC.

7. The applicant responded via his former representative to the NOICC on 28 March 2024.

8. On 22 April 2024, the delegate cancelled the visa on the basis that the applicant failed to comply with sections 101(b), 104 and 105 of the Migration Act. The delegate found that the applicant failed to disclose the criminal fraud offences in his application and subsequently failed to advise the Department of his changes in circumstances and particulars of having provided an incorrect answer in his combined application form.

9. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

10. The applicant lodged an application for review with the Tribunal on 26 April 2024. The review application was accompanied by a copy of the primary decision record and applicant’s passport biodata page.

11. On 24 June 2024, the Tribunal invited the review applicant under s.360 of the Act to appear before the Tribunal.

12. Mr Anup Shahi appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ashmita Shrestha (Primary Visa holder and spouse) and Mr Nirajan Tamraker (friend). The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

13. Prior to the commencement of the hearing the Tribunal was advised that the applicant sought the Tribunal take evidence from eight witnesses. The Tribunal noted that the witnesses were family members and close friends of the applicant who had previously provided written statements to the Tribunal. The Tribunal discussed with the applicant and representative the likelihood that the evidence the witnesses sought to provide, was different to that already provided in the written statements and of a nature on which the review would ultimately turn.

14. In agreement with the representative, two witnesses (as noted above) appeared before the Tribunal to provide evidence. The Tribunal is satisfied that the applicant and the witnesses were given a fair opportunity to give evidence and present arguments.

15. The applicant was represented in relation to the review. The representative attended the hearing.

16. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

17. The Tribunal additionally has available for consideration, regard to Department policy, the Act and the Regulations.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

20. 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.

    Background

21. The applicant is a 30-year-old citizen of Nepal.  He first arrived in Australia on a student visa on 11 July 2014. Information before the Tribunal shows the applicant did not complete his studies in Bachelor of Business Information Studies and ceased his studies in July 2019.  All subsequent visas granted to the applicant since March 2017, have been as a dependant, on the basis of him being a member of the family unit of his wife Ms Asmita Shrestha.  

22. On 11 September 2023, the applicant was granted a Skilled Independent (subclass 189) visa as a dependent of his spouse.

23. The applicant currently holds a 40% share in a business which trades as a Pizza restaurant         (Sven’s Viking Pizza) located at Coogee NSW, which he purchased in partnership with two other investors in October 2023. Evidence before the Tribunal purports that the applicant invested $40,000 to purchase this business.

24. The applicant’s wife and the primary holder of the Subclass 189 visa is also a 30-year-old citizen of Nepal. Ms Shrestha has been married to the applicant since 2015 and is currently employed as a Registered nurse at Nepean hospital Penrith.

25. Since their arrival in Australia in 2015, the couple have accumulated debts of approximately $64,000 including personal debt of approximately $57,000 and a business loan $6,836.  

    CONSIDERATION OF THE EVIDENCE 

26. The review of this matter involves three major considerations. Firstly, consideration of the issue of compliance with s.107 by the Department, and the validity of the notice; secondly, whether there was noncompliance as described and particularised in the notice; and thirdly, the exercise of discretion, cancellation not being mandatory, and if there was non-compliance as described in the notice, whether the visa should be cancelled. 

    Is the Notice compliant with s 107?

27. The first consideration in this matter is the validity of the section 107 notice (the Notice of Intention to consider cancellation under s 109 of the Migration Act) issued by the Department on 12 March 2024 and reissued 14 March 2024.

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

    [1] The relevant sections mentioned are sections 101,102,103,104 and 105.

29. Relevantly in the present case, s.107(1) requires the Minister to consider whether the visa holder has complied with s.101[2]. On 12 March 2024, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) under s.109, also referred to in these reasons simply as ‘the notice’. Subsequently on 14 March 2024, the NOICC was reissued to correct an omission in the original notice stating the visa holder could inform the Department in writing or by phone if he did not intend to provide a written response within the period specified.

    [2] Section 101(a) All questions on it are answered and (b) no incorrect answers are given or provided;

30. The applicant responded via his former representative, to the Department on 25 March 2024 and submitted a response to the NOICC via email on 28 March 2024.

31. The Tribunal has considered the validity of the notice, the contents of which is not reproduced in detail. The Tribunal is satisfied however that it contains sufficient particulars to enable the applicant to identify and address the issues. The notice provided particulars of non-compliance, as set out below, the non-compliance being with sections 101 (b) (gave incorrect answers), 104 (changes in circumstances to be notified) and 105 of the Migration Act (particulars of incorrect answers to be given). 

32. The Tribunal finds that the delegate had reached the necessary state of mind to engage s.107 and that the notice complied with the statutory requirements and was compliant with the notification requirements.

33. At the hearing the applicant’s representative, when asked, agreed this was the case and submitted that the notice was compliant.

34. For his part, the visa applicant takes no issue with the validity of the notice, which he submits was validly issued, but presses his case on the basis that there are strong grounds to support an outcome that the visa should not be cancelled. The Tribunal has placed significant weight on the evidence provided as referred to below.

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

35. The second 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.

36. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b), 104 and s105 in the following respects, as set out by the delegate.

    ·      Possible non-compliance with section 101(b)- Visa applications to be correct

    “ ………I consider the visa holder has not complied with the requirements of section 101(b) of the Migration Act, as he provided incorrect answers to the following questions in his application for a combined Skilled Independent visa, lodged on 1 June 2023:

    Has any applicant ever been charged with any offence that is currently awaiting legal action?
    No …
    Warning:
    Giving false or misleading information is a serious offence.
    The applicants declare that they:
    …
    Have provided complete and correct information in every detail on this form, and on any attachments to it.

    Yes

    I consider these answers to be incorrect because at the time he lodged his application for a combined Skilled Independent visa on 1 June 2023, he had been charged with offences which were currently awaiting legal action and he did not declare this.

    Therefore, I consider the visa holder did not provide complete and correct information in his application, despite his declaration that he had done so.”

    ·Possible non-compliance with section 104 - Changes in circumstances to be notified

    There is no information before me to indicate the visa holder informed the department he had provided incorrect information in his application that he had, in fact, been charged with offences which were currently awaiting legal action.

    Neither did he inform the department, as soon as practicable, that on 1 September 2023 (prior to grant of the visa) his circumstances had changed because he had pleaded guilty to criminal fraud offences in the Parramatta Local Court and was to be sentenced at a later date.

    ·  On 1 June 2023, after lodging his application for the visa, he was issued an Acknowledgement of Application letter. Page 2 of the letter states:

    Update us
    You need to tell us about any changes to your details as soon as possible. These changes may affect any answer to a question in your application form including your name, passport, contact details, address and family members.

    You must do this in writing and can use Form 1022 Notification of changes in circumstances (Section 104 of the Migration Act 1958), available on our website you lodged your application online, use your ImmiAccount to provide this information: to notify us of these changes can have serious consequences and even if the visa
    you have applied for is granted, it may later be cancelled.

    Therefore, on 1 June 2023 the visa holder was reminded of his obligation under section 104 to notify the department of any changes or incorrect information. He was also reminded of the consequences of not complying with this obligation.

    However, he does not appear to have informed the department in writing of the incorrect information provided in his visa application. He also does not appear to have informed the department in writing of any changes to his circumstances due to being charged, the provisions of his sentencing, or penalty imposed on conviction.

    ·Possible non-compliance with section 105 - Particulars of incorrect answers to be given

    There is no information before me to indicate that at any time, either during consideration of the visa application or after it was granted, the visa holder informed the department he had provided incorrect information in his application for the Skilled Independent visa.

    Page 3 of the Grant Notification letter sent to the visa holder on 11 September 2023, the date he was granted the visa, states the following:

    Character requirements
    Entering or remaining in Australia is a privilege. You must obey the law and not engage in
    criminal activity.
    Your visa may be cancelled for a number of reasons, including if you have a substantial
    criminal record or behave in a way that is a risk to somebody in the Australian community.
    More information: immi.homeaffairs.gov.au/help-support/meeting-our-requirements/character
    …
    Update us
    You are required to tell us about any other changes to your details as soon as possible.
    These changes may include your name, passport, contact details, address or family
    members.
    If you do not notify us of your new details, this can have serious consequences for you. More information: immi.homeaffairs.gov.au/change-in-situation

    Therefore, upon grant of the visa the visa holder was again reminded of the character requirements and his obligation to notify the department of any changes or incorrect information. He was also reminded of the possible consequences of not complying with obligations under the Migration Act.

    However, he does not appear to have, as soon as practicable, notified an officer in writing of the incorrect information in his visa application and of the correct answer.”

37. Information before the Tribunal confirms that the applicant at the time of application (1 June 2023), was subject to criminal charges and that these charges were still before the Court when his visa was granted. The applicant does not dispute that said criminal charges were not disclosed to the Department at the time the application was lodged. As noted by the delegate and evident in the applicant’s combined application to the Department, the application shows the response “No” to the question “Has any applicant ever been charged with any offence that is currently awaiting legal action?”

38. In submissions before the Tribunal (which include the former representative’s response to the NOICC, written witness statements and in oral evidence), the applicant purports that he informed his Migration Agent at the time (Ms Simrita Ranjitkar) that he was subject of criminal charges before the Court and Ms Ranjitkar overlooked this information. In written statements before the Tribunal Ms Ranjitkar claims she failed to “notify my Migration team” and that the “team” relied on the applicant’s AFP and Nepalese police clearances. 

39. The Tribunal finds on the applicant’s own evidence including submissions by his current representative dated 24 August 2024, the applicant failed to answer correctly by declaring “No” to the question Has any applicant ever been charged with any offence that is currently awaiting legal action?

40. Whilst the applicant claims he informed his former Migration Agent of the correct information and in return she purports to take responsibility for the incorrect information, this however does not mitigate the noncompliance. The fact remains that the visa holder provided an incorrect answer to the question, in relation to “Has any applicant ever been charged with any offence that is currently awaiting legal action? In accordance with S98 of the Act, the Tribunal considers that engaging a third party to prepare and lodge his visa application, does not excuse the visa holder from the requirements to provide correct information in his visa application form. It is immaterial to the issue that the applicant engaged an agent to complete his application as it does not excuse him from the requirements to provide correct information in his visa application form.

41. The Tribunal has considered the evidence before it including the applicant’s responses, and numerous submissions including character statements. The Tribunal finds that the applicant had been charged with offences at the time he lodged the combined Skilled Independent visa application on 1 June 2023, and did not disclose these charges to the Department. Therefore, the Tribunal considers the visa holder did not provide complete and correct information in his application, despite his declaration that he had done so.

42. Additionally, the applicant did not inform the Department, as soon as practicable, that on 1 September 2023 (prior to grant of the visa) his circumstances had changed because he had pleaded guilty to criminal fraud offences in the Parramatta Local Court and was to be sentenced at a later date.

43. There is no information before the Tribunal to indicate that at any time, either during consideration of the visa application or after it was granted, the visa holder informed the Department he had provided incorrect information in his application for the Skilled Independent visa.

1. For these reasons, the Tribunal finds that there was non-compliance with s 101 and s105 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

2. 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).

3. 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).

4. The prescribed circumstances are set out in reg 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.

5. 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.

6. Policy considers that delegates and decision-makers should also consider the following additional 4 matters:

   •whether there are persons in Australia whose visas would, or may be cancelled under section 140 (the consequential cancellation provision);

   •whether Australia has any relevant international obligations and agreements that may be breached by a visa cancellation, and where for example there are children in Australia whose interests may be affected, and which

   considerations are to be treated as “primary” in regards to the best interest of those children;

   •any mandatory legal consequences, such as indefinite detention, bar to further entry or visa application unless the Minister intervenes, and whether the person might then be liable to detention as an unlawful non-citizen and therefore liable to forcible removal

   •any other relevant matters including hardship caused to both the visa applicant and family members

7. It should be stated at the outset in consideration of the proper exercise of the discretion, that it is potentially a complex exercise which will vary in each case as personal circumstances dictate. Consideration may vary according to the available information and documentation, its integrity, the seriousness of any alleged breaches or admissions, submissions made and accepted from the applicant and any credibility issues.

8. Policy suggests that decision-makers should not weigh matters that are (obviously) adverse to the visa holder, as grounds for cancellation have already been made out. However, emphasis should be given to any information which should be weighted in the visa applicant’s favour, and prior to the exercise of the discretion. In doing so, the Tribunal is further mindful that there is no obligation (or ‘onus’) on the visa holder to establish that the visa should not be cancelled. Instead, it is for the decision-maker to find based on a real state of satisfaction from the available information and supporting documentation, and not “simply because the visa holder has failed to show cause why it should not”[3] (be cancelled).

   [3] See Zhao v MIMA[2000]fca1235 at [25] and [32].

9. The Tribunal has therefore gone on to consider if it has reached the required level of ‘a real state of satisfaction’, on the available information and documentation, whether the visa should be cancelled.

   Consideration of the Relevant prescribed factors

   The correct information

10. The applicant has confirmed in his evidence and the Tribunal accepts, that the correct information to the question “ Has any applicant ever been charged with any offence that is currently awaiting legal action? should have been “Yes”.

11. Following the lodgement of the visa application form, the applicant pleaded guilty and was convicted and sentenced on 22 February 2024. Despite the Department issuing reminders to him (on 1 June and 11 September 2023) of his obligations under sections 104 and 105 of the Migration Act, he failed to inform the Department in writing of the incorrect information provided in his visa application. Neither did he provide correct information when he failed to inform the Department of the changes to his circumstances due to being convicted of the offences and having penalties imposed on him by the Court.

    The content of the genuine document (if any)

12. The Tribunal finds this is not a case involving a non-genuine or bogus document. Rather, it is an instance where information, as set out above, provided by the applicant, was incorrect, omitted, and not true at the time it was given with the application.

    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

13. The applicant made the application as secondary applicant to his wife’s visa application. It is not disputed that he was facing criminal charges at the time the application was submitted. It is further not disputed that incorrect information was provided to the Department at the time of application.

14. The applicant’s provision of incorrect information denied the delegate at the time of assessment opportunity to accurately assess whether the applicant was eligible to be granted the visa. Consequently, the visa holder gained an immigration benefit that he may not have been entitled.

15. The Tribunal finds accordingly that the decision to grant the visa was based on the incorrect information, unaware at the time of assessment the applicant was subject to criminal proceedings before the Courts.

    The circumstances in which the non-compliance occurred

16. The circumstances in which non-compliance with section 101(b) of the Migration Act occurred when, the visa holder provided incorrect information to support his application for a Skilled Independent visa. The applicant’s subsequent failure to advise the Department of this incorrect answer constitutes the visa holder’s non-compliance with section 105 of the Migration Act.

17. As noted previously in this decision, the applicant claims the noncompliance was unintentional as he informed his former Migration Agent of the pending charges prior to lodgement of the combined visa application, but the Agent forgot to pass this information on to staff responsible for preparing the visa application. The Tribunal has before it a letter dated 25 March 2024 from Ms Simrita Ranjiktar supporting this explanation. As noted by the delegate, the applicant claims he “was not privy as to the status of his visa application since it had been lodged by Grace International on his behalf” and that he was unaware the Department had not been informed of the charges against him, until he received the NOICC.

18. Regardless of the applicant’s assertions, sections 98, 99, and 100 of the Migration Act clearly state the responsibility for correct information lies with the visa holder; even if the person who provided the information did not know it was incorrect.

19. As noted by the delegate, the subsequent failure of the applicant to notify the Department of an incorrect answer are in no way mitigated  by Ms Ranjitkar’s acknowledged omission of the fact of the charges pending from the visa application; even if the applicant was of the belief the information relating to the charges had already been included in the application, any information relating to his plea and subsequent conviction are separate matters.

20. In evidence before the Tribunal, the applicant has demonstrated contrition and reflection of his actions which led him being charged and convicted of fraud. The applicant accepts that there has been noncompliance with ss 101(b) and 105 of the Migration Act and accepts responsibility for his actions at the time.

21. At the hearing the applicant told the Tribunal that he fully cooperated with the Department of Fair Trading during the investigation leading to him being charged with fraud and that he paid restitution to those impacted by his actions as ordered by the Court. The applicant also completed his community service as stipulated by the Court. The Tribunal noted that the restitution payments were enforced by the Court.

22. Whilst Ms Ranjitkar claims responsibility for not mentioning to “her migration team” the fact that the applicant had been charged with offences at the time he lodged his application and “the teams” reliance on the National Police Certificate issued by the Australian Federal Police on 24 March 2023, advising that there were no disclosable court outcomes recorded against the applicant’s name. It could be that this occurred, or this could be fabricated for the benefit of the Tribunal, however the Tribunal cannot make a finding that the applicant deliberately withheld the information although there is a likelihood that the applicant did not want to provide the information to the Department as it was against his interest.

    The present circumstances of the visa holder

23. The applicant refers to his personal and present circumstances in his written statement to the Tribunal dated 19 August 2024. Additionally, before the Tribunal are written statements attesting to the applicant’s personal circumstances submitted by family and friends including Mrs Ashmita Shrestha (wife), Mr Aman Jung Shahi (brother), Ram Krishna Shrestha (Business Partner),Nirajan Tamrakar (Childhood friend), Sailesh Gurung (Best Friend), Ujjwal Upreti (Friend), Simrita Ranjitkar (Visa Agent) and Rajiv Sherchan (Community Event Planner)

24. At the hearing the applicant explained to the Tribunal the impact the cancellation of his visa has had on him and his wife. Since the visa cancellation the applicant has not been working as he has been waiting for approval of his bridging visa application (granted on 26 August 2024). During his unemployment he has been relying on his wife’s income and he is ashamed that she is working additional shifts to support him. The applicant is concerned for his wife as she is a Registered Nurse, and it is crucial to her job that she is focussed while conducting her work and not stressed and distracted because of his actions.

25. Evidence before the Tribunal shows that the applicant owns a 40% share in a Pizza shop located at Coogee, in which the applicant claims he invested $40,000. The applicant is employed by the business as the Head Chef and Manager. The business employs approximately six casual staff and has been struggling without his direct employment.

26. The applicant confirmed the contents of his written statement were correct and elaborated on specific aspects including the financial debt incurred by him and his wife. The applicant also clarified his role in in an event company “Dreamheights” in which it was established during the hearing whilst the applicant claims “to run an event company” that he does not own this business and receives payments to organise cultural events.

27. The applicant has submitted several character references (as noted above) supporting his application. He also relies upon oral evidence from the witnesses Ms Ashmita Shrestha (primary visa holder and spouse) and Mr Nirajan Tamraker (friend) presented at the hearing. The Tribunal accepts that the applicant owns a 40% share in a Pizza shop, is actively involved in Nepalese basketball and is well regarded by members of the Nepalese community.

28. The applicant has conveyed to the Tribunal the importance of him remaining in Australia to support his wife and brother. This is because his wife and brother have established lives in Australia, and they are a close familial group. The applicant and his wife have been together since 2011, married in 2015 and came to Australia together in 2016. Mrs Shrestha completed her studies in Bachelor of Nursing at Western Sydney University and is employed as a Registered Nurse with NSW Health Service (Nepean Hospital).

29. In evidence before the Tribunal both the applicant and his wife submit that they have incurred approximately $64,000 in debts, of which they are currently struggling to repay but intend to pay off, with the applicant returning to work now that he has work rights and if he can continue to remain in Australia.

30. It is submitted, and the Tribunal accepts, that the applicant’s wife and brother will suffer financial hardship following the applicant’s return to Nepal. It is submitted, and the Tribunal accepts, that the career prospects of Mrs Shrestha will be significantly impacted, as will her financial and emotional well-being should the applicant be required to leave Australia as a result of his visa cancellation. The Tribunal accepts it would be difficult also for the applicant who will need to relocate, find employment and be in a financial situation to pay debt accumulated in Australia.

31. The evidence discloses and the Tribunal accepts that the household is heavily reliant on the incomes jointly of both the applicant and his wife. During the period the applicant has ceased work, the household has severely been impacted financially with the wife undertaking additional shifts to the detriment of her mental health. The Tribunal finds that the present circumstances are relevant matters and weigh in favour of the applicant in the particular circumstances of this case.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

32. Other than for the matters the subject of these proceedings on review, there is no other information before the Tribunal which might indicate adverse behaviour by the applicant or issues arising because the applicant has not met his other obligations under the Act.

33. The visa holder has responded to Departmental correspondence in a timely manner and engaged a legal practitioner to respond to the NOICC and a subsequent legal practitioner to represent him before the Tribunal, indicating an awareness of the seriousness of this matter.

    Any other instances of non-compliance by the visa holder known to the Minister

34. The Tribunal finds it is not aware of any other instances of non-compliance by the applicant which are known to the Minister or any other adverse information in that regard.

    The time that has elapsed since the non-compliance

35. The non-compliance occurred when the visa holder provided incorrect information in support of his combined application as a dependent spouse for a Skilled Independent visa, lodged on 1 June 2023. The process for completion of that application took place over a 3-month period until the visa was granted on 11 September 2023.

36. The obligation under sections 104 and 105 to inform the Department of changes in circumstances and incorrect information ‘applies despite the grant of any visa’, the non-compliance with sections 104 and 105 continued up until the visa holder responded to the NOICC on 28 March 2024 and admitted to having convictions.

37. The Tribunal finds that in that period from 1 June 2023 up until the applicant’s response to the NOICC on 28 March 2024, approximately 11 months elapsed since the visa holder’s non-compliance.

38. The Tribunal finds that the events leading up to cancellation are still relatively recent within the timeframe of processing for consideration and subsequently cancellation by the Department being under twelve months. Therefore, it is the Tribunal’s view a relatively short period of time has elapsed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

39. The Tribunal finds that there are no known breaches of the law since the initial noncompliance (in June 2023 with lodgement of the visa application).

    Any contribution made by the holder to the community.

40. The applicant presents as a contributing member of the Nepalese community and was supported at the hearing by close family and friends. In written statements before the Tribunal the applicant asserts to contribute to the Nepalese diaspora through his contribution to Nepalese Basketball in which he holds the position of President. There is no evidence of the applicant making significant contributions to the broader Australian community and apart from character statements attesting to his involvement with Nepalese Basketball Australia and organising some cultural activities, no persuasive evidence has been provided regarding how his visa cancellation would undermine his contributions to the community.

    Other factors?

41. The Tribunal has also been mindful to consider other relevant factors to be applied towards the exercise of the discretion.

    Whether there would be consequential cancellations under s 140? whether there are persons in Australia whose visas would, or may be cancelled under section 140 (the consequential cancellation provision);

42. In this instance, the applicant was granted a Skilled Independent (subclass 189) visa on the basis that he was a member of the family unit of the primary applicant, Ms Asmita Shrestha.

43. Ms Shrestha told the Tribunal that the applicant supported her while she was studying and that she can not imagine being without him and that it will be hard to go back to Nepal after being in Australia for ten years.

44. Currently she is extremely anxious, and her mental health has been severely impacted by the uncertainty over her husband’s visa status. The couple planned on starting a family, but these plans are now on hold pending their future together.

45. Other than evidence provided by the applicant’s spouse as to the impact of the applicant’s visa cancellation on her, the Tribunal finds there would be no consequential cancellations under section 140.

    Whether the cancellation would lead to the person's removal in breach of Australia's nonrefoulement or family unity obligations.  whether Australia has any relevant international obligations and agreements that may be breached by a visa cancellation, and where for example there are children in Australia whose interests may be affected, and which considerations are to be treated as “primary” in regards to the best interest of those children;

46. Non-refoulement refers to the principal under international human rights law that guarantees no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. The principle applies to all migrants at all times, irrespective of their migration status. 

47. The Tribunal finds that there is no evidence before it, nor does the applicant claim that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

48. The applicant confirmed at the hearing that currently there are no children of the relationship and therefore there are no minor children in Australia whose interests may be negatively affected if the visa remains cancelled.

49. The Tribunal finds therefore that there is no evidence before it, nor does the applicant claim, that Australia’s international obligations would be breached as a result of the cancellation.

    Any mandatory legal consequences, such as indefinite detention, bar to further entry or visa application unless the Minister intervenes, and whether the person might then be liable to detention as an unlawful non-citizen and therefore liable to forcible removal

1. The Tribunal further finds that there are no mandatory legal consequences following a cancellation, such as the applicant becoming unlawful, provided he were to comply with any conditions relevant for his removal, and without the need for him to be in detention. The possibility of detention seems to the Tribunal to be unlikely in this instance. Following the applicant’s removal, there would be no bar to prevent him from making a further valid application for a visa in due course, but which anecdotally would be likely to be processed over a couple of years while he remained offshore, and with uncertain prospects.

   Any other relevant matters including hardship caused to both the visa applicant and family members

2. The applicant and his wife came to Australia as a couple in 2016. As previously noted in this decision, the applicant was granted a Skilled Independent (subclass 189) visa on the basis that he was a member of the family unit of the primary applicant, Ms Asmita Shrestha.

3. Ms Shrestha completed her studies in Bachelor of Nursing and is currently employed as Registered Nurse at Nepean Hospital, Penrith NSW. During their time in Australia the couple have incurred approximately $64,000 of debt comprising of personal loans, credit cards and a small business loan. The applicant holds a 40% share in a business that operates a Pizza shop and claims that he has invested $40,000 to purchase said shares/interest in the business.

4. The Tribunal has considered the degree of hardship that will undoubtedly result for the applicant’s wife and takes into consideration the evidence of the couple’s current financial circumstances, including the likely future costs associated with the applicant’s departure from Australia and whether he would be able to sell his shares in the Pizza business.

5. The Tribunal notes that the applicant and his wife have recently entered into a residential tenancy agreement commencing 20 July 2024 to 19 July 2025, in which likely financial penalties would be incurred if the applicants broke the lease to return to Nepal. Additionally, the applicant is concerned that should he be required to depart Australia his wife would be held liable to repay the debts incurred by the couple and struggle to pay the rent.  

6. At the hearing Ms Shrestha indicated that she would return to Nepal to be with her husband in the event that his visa was not reinstated.

   Summary

7. The Tribunal has carefully considered the totality of the evidence, the information provided and available from the Department, and the submissions provided for the Tribunal’s hearing. The Tribunal has found that the applicant provided incorrect answers in the manner particularised (and conceded by him) by the Department notice, in breach of sections 101(b) and 105 of the Act.

100.   The Tribunal has accepted that the applicant’s departure from Australia will cause his wife considerable hardship, given that they have lived together in Australia since 2016 and have formed strong social, financial, and employment ties to Australia. This alone would not be persuasive against cancellation, however the Tribunal has placed the greatest weight upon the consideration of the primary visa holder’s interest, her welfare and her skills and contribution to the Australian community, which it has found would be significantly adversely affected. Forming part of this consideration, the Tribunal is mindful the occupation of Registered Nurse (in all categories) is listed in the Government’s (Jobs and Skills Australia) Skills Priority List as a National shortage. 

101.   In weighing all these considerations, the Tribunal has taken into account the available documentary evidence contained on the Department and Tribunal files and oral evidence provided to the Tribunal during the hearing. The Tribunal has additionally had the benefit of listening to the evidence at the hearing, an advantage not available to the Department delegate. The Tribunal therefore on the basis of this evidence has formed the view that the weight of evidence supports the applicant and a decision that the visa should not be cancelled. This weighting is not intended in any way to minimise the seriousness of the applicant’s actions, but rather to give predominance to the primary visa holder who is likely to be more adversely affected by the decision than anyone else.

102.   At the hearing the applicant demonstrated what appeared to be genuine contrition and embarrassment for his involvement in winding back car odometers, leading to him being convicted of fraud. Whether this contrition was embellished for the benefit of the Tribunal, the Tribunal nevertheless accepts that the applicant has learned a lasting lesson and realises that he has jeopardised his wife and his future in Australia, and that he now has a criminal record.

103.   It is the impact on the primary visa holder, the applicant’s wife which tips the balance against the cancellation of this visa.

104.   The Tribunal finds therefore that the weight of the factors considered and outlined above leads to the conclusion that the correct and preferable decision is that the visa should not be cancelled.

Conclusion

105.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. 

106.   Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that in the exercise of discretion, the visa should not be cancelled.

DECISION

107.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Karen McNamara
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.