SHARMA (Migration)

[2018] AATA 401

SHARMA (Migration) [2018] AATA 401 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KARUN DUTT SHARMA
Mrs GAGANPREET KAUR
Master ARJUN DUTT SHARMA

CASE NUMBER:  1619047

DIBP REFERENCE(S):  BCC2015/1973205

MEMBER:Antonio Dronjic

DATE:19 February 2018

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 19 February 2018 at 5:04pm

CATCHWORDS

Migration – Cancellation – Skilled Independent (Permanent) visa – Subclass 189 Skilled – Independent – Previous skills assessment invalid – Positive skills assessment

LEGISLATION
Migration Act 1958, ss 5, 97-101, 103, 107-109, 140

CASES
Saleem v MRT [2004] FCA 234

SZEEM v MIMIA [2005] FMCA 27

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 Immigration to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) had not complied with s.101(b) and s.103 of the Act because he gave incorrect answers on the visa application form about whether he held a valid skills assessment and he provided a bogus document from Engineers Australia dated 9 January 2014.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants were represented in relation to the review by their registered migration agent.

5. 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

6. 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.

7. 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.

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

8. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

9. It is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] The Tribunal is further restricted to consideration of whether there was non-compliance in the manner particularised in the s.107 notice.[2]

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

   [1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).

   [2] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005).

10. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 in the following respects. The applicant applied for a subclass 189 Skilled Independent visa on 8 April 2014. On the visa application he provided details of a skills assessment conducted by Engineers Australia on 9 January 2014 and he declared that he had provided complete and correct information in every detail on the form and attachments. The attachments included a letter from Dr Grahame Crookham, Qualifications Assessor, Engineers Australia, dated 9 January 2014, which advised that the applicant had been assessed as meeting the current academic requirement for standing as a Professional Engineer (Skill Level 1) in Australia and his occupational classification for migration purposes is Mechanical Engineer ANZSCO 233512.

11. However, on 12 October 2016 Engineers Australia wrote to the Department and the applicant and advised that the applicant's migrant skills assessment was invalid due to plagiarism. The Department considers that the applicant had provided incorrect answers on the visa application form as he does not hold a valid skills assessment from a relevant assessing authority. Also, he provided a bogus document from Engineers Australia, dated 9 January 2014.

12. On 20 December 2017 the applicant provided the Tribunal with a letter dated 22 February 2017 from Nsangou Issah, Qualifications Assessor, Engineers Australia, which advises that Engineers Australia is pleased to advise that on the basis of the competencies the applicant has demonstrated, taken in conjunction with his qualification, the applicant meets the requirement for the occupation of Professional Engineer (Skill Level 1) in Australia and his occupational classification is Mechanical Engineer ANZSCO 233512, and the date is April 2006. The applicant's highest relevant qualification is his bachelor degree completed in April 2006 from Punjab Technical University India.

13. On 20 December 2017 the applicants’ representative provided the Tribunal with submissions stating that the applicant was granted a Skilled Independent visa on 16 June 2014. The Department issued a Notice of intention to consider cancellation (NOICC) on 6 October 2016. He received a Notification of Cancellation of his visa on 10 November 2016.

14. The applicant submitted that he did not provide incorrect answers to the Department as, at the time of visa application, he held a valid skills assessment issued by the Engineers Australia on 9 January 2014. It was further submitted that the letter from Engineers Australia of 12 October 2016 was the result of a re-assessment of his application. Accordingly, the positive skills assessment dated 16 June 2014 remained in force until re-assessment took place (approximately two years and four months after the positive skills assessment was issued). The applicant denies that he provided bogus document to the department with his visa application.

15. The applicant has also submitted that in January 2017, he applied for a reassessment of his skills to Engineers Australia and that this was not a new skills assessment application but was a re-assessment application as is evident from the tax invoice/receipt issued to the applicant (the fee for re-assessment was $117.70). On 22 February 2017 Engineers Australia provided the applicant with a positive assessment for the occupation of Mechanical Engineer and he still holds a valid skills assessment.

16. Attached to submissions were:

    ·Letter from Engineers Australia dated 22 February 2017;

    ·Tax invoice as evidence of payment of re-assessment fees dated 18 January 2017; and

    ·Copy applicant’s degree from Punjab Technical University with statement of results.

17. The Tribunal is satisfied that the applicant has a positive skills assessment from Engineers Australia for the occupation of Mechanical Engineer ANZSCO 233512. The assessment was based on the applicant's qualifications obtained in 2006 in conjunction with competencies that the applicant has demonstrated. The evidence before the Tribunal does not provide any detail as to whether the competencies that the applicant demonstrated were the same competencies that were assessed for the positive skills assessment issued on 9 January 2014, which was later invalidated. However, the qualification used in both assessments is the same; it is the bachelor degree obtained by the applicant from Punjab Technical University.

18. The Tribunal has taken into account that at the time that the applicant lodged the visa application on 8 April 2014 he had a positive skills assessment dated 9 January 2014 and he has again been issued with a positive skills assessment dated 22 February 2017. The delegate found that the original skills assessment dated 9 January 2014 was a bogus document because on 12 October 2016 Engineers Australia had reassessed the applicant's skills and decided that the previous skills assessment was invalid.

19. However, this was a reassessment that occurred more than two years after the applicant lodged the visa application. The Tribunal is not persuaded that at the time of lodgement the skills assessment dated 9 January 2014 was a bogus document as defined in s.103 or that the applicant had provided incorrect answers on the visa application, as required by s.101 of the Act because at the time he applied for the visa, the applicant held a positive skills assessment. The Tribunal is of the view that when Engineers Australia conducted the reassessment and invalidated the skills assessment, cancellation under the provisions of s.116(1)(a): circumstances which permitted the grant of the visa no longer exist, might have been more appropriate.

20. However, as the applicant now has, and had at the time of visa lodgement, a positive skills assessment the Tribunal is not satisfied that the applicant gave incorrect information on the visa application or that he provided a bogus document.

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

    DECISION

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

23. The Tribunal has no jurisdiction with respect to the other applicants.

    Antonio Dronjic
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.