Sharma (Migration)

[2023] AATA 4390

Sharma (Migration) [2023] AATA 4390 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishal Sharma

CASE NUMBER:  2209844

HOME AFFAIRS REFERENCE(S):          BCC2022/318061

MEMBER:David McCulloch

DATE:18 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 December 2023 at 10:39am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect answers and bogus documents – employment history and reference letter – integrity checks – workplace closed due to COVID pandemic and renovations – minimum staff retained during partial operations – payslips and letter and oral evidence from director – detailed and convincing evidence of duties – no details of department’s inquiries included – original enrolments cancelled due to non-commencement – current study at another college – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109(1)

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 500 (Student) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The visa that was cancelled was granted on 14 October 2021 for a stay period until 29 May 2024.

3. The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in a visa application, breaching s 101(b) of the Act and producing bogus documents, breaching s 103 of the Act. The issue in the present case is whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 20 October 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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.

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.

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

9. 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(b) and s 103. The s 107 notice advised relevantly as follows:

   Information provided in your visa application

   On 5 October 2021, you lodged an application for a Student (subclass 500) visa and submitted the electronic form Application for a Student Visa. On page 8 and 9 of the application form, under the heading “Employment” you provided the following information:

   Employment history details
   Employment status: Employed
   Is this applicant’s current employment situation? Yes

   Employer/business details
   Give details of the employer/business.
   Organisation name: HOTEL K L G INTERNATIONAL
   Industry type: Accommodation and Food Services

   Organisation address
   Country: INDIA
   Address: SCO 121-22-23-24, SECTOR 43 B
   Suburb/Town CHANDIGARH
   State/Province CHANDIGARH

   Postal code 160034

   Contact person details
   Give details of the contact person within the organisation.
   Family name: GROVER
   Given names: AMAN

   Position details
   Position: Housekeeping Manager
   Date from: 1 June 2018

   On page 14 of the application form, under the heading “Declarations’ it states ‘Warning – Giving false or misleading information is a serious offence”, you answered “yes” to the following

   Declarations:

   Giving false or misleading information is a serious offence.

   The applicants declare that they:

   ·Have read and understood the information provided to them in this application.

   ·Have provided complete and correct information in every details on this form, and on any attachments to it.

   ·Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

   You also provided an undated letter in support of your Student visa application in the form of a Genuine Temporary Entrant (GTE) statement in which you state in part:

   “I was managing guests, including VIP amenities and communicating to the relevant team member and routine inspection of guest bedrooms to ensure they meet standards. I joined Hotel K L G International on 1st June, 2018 as a housekeeping manager and continuing working with Hotel K L G International till date at same profile.”

   You submitted the following documents in support of your claimed employment history:

   ·29 May 2018 - Appointment letter for the Post of Housekeeping Manager from the Hotel KLG International commencing 1 June 2018.

   ·20 September 2021 – Reference letter from the Hotel KLG International stating that you were working as a Housekeeping Manager from 1 June 2018 to date.

   Based on the above information, as well as meeting all other relevant criteria, you were granted a Student visa on 14 October 2021.
   You arrived in Australia on 21 December 2021. You were enrolled to study at Le Cordon Bleu Australia Pty Ltd. I note that all your enrolments with Le Cordon Bleu Australia Pty Ltd have been cancelled on 21 February 2021 due to non-commencement of study.

   Subsequent information received by the Department

   Following the grant of your visa, the Department’s overseas office completed integrity checks on the information and supporting documents you submitted with your application. The Department contacted the Hotel KLG International, who confirmed that they have been closed since March 2020 due to the COVID-19 pandemic and were undertaking renovations. The hotel also confirmed that no-one had been employed at the hotel since March 2020. Therefore, I consider the Hotel KLG International did not employ you at the time you applied for your Student visa and you were not working for them from March 2020 when the hotel temporarily closed.

   The result of these integrity checks indicate that the Hotel KLG International reference letter dated 20 September 2021, you provided in support of your Student visa application is non-genuine.

   Non-compliance with Section 101(b)

   I consider you provided an incorrect answer in your application for a Student (subclass 500) visa when you stated at page 8 & 9 that you were currently employed with Hotel KLG International in the position of Housekeeping Manager and by declaring that the information you provided was complete and correct information in every detail on this form, and on any attachments to it on page 14 under the heading ‘Declaration”.

   I consider this information to be incorrect because the Department contacted Hotel KLG
   International who confirmed the hotel was closed from March 2020 due to the COVID-19 Pandemic and to undertake renovations. The hotel also confirmed that no-one had been employed at the hotel since March 2020. Based on the above, I consider you were not employed Hotel KLG International when you applied for your Student visa.

   Non-compliance with section 103

   I consider you have not complied with section 103 of the Act because in support of your application for a Student visa you provided the following document, which I consider to be a bogus document:

   ·20 September 2021 - Reference letter from Hotel KLG International stating that you were working at the hotel as a Housekeeping manager from 1 June 2018 to date.

   As a result of the Department’s integrity checks, Hotel KLG International confirmed that they were closed for business from March 2020 due to the COVID-19 Pandemic and to undertake
   renovations. The hotel also confirmed that no-one had been employed at the hotel since March 2020. This indicates that you did not work for them at the time you applied for your student visa. I therefore reasonably suspect that the document relating to your experience at the Hotel KLG International to be counterfeit or to have been altered by a person who does not have authority to do so, as it was not genuinely issued in respect of your claimed employment history.

   Based on the above information, I consider that you have provided incorrect answers and
   submitted a bogus document in your Student visa application. I consider therefore that you have not complied with sections 101(b) and 103 of the Act, and accordingly your Student visa may be liable for cancellation under section 109 of the Act.

10. The applicant was notified of and invited to comment on the intention to consider the cancellation of their student visa. The applicant provided a response on 8 June 2022 which included as follows (not corrected for spelling and grammar):

    I have the real reason to write this letter to appeal against my visa cancellation. I have gone through all the reason behind intention to cancel my visa. I have found in this letter that Department of home affairs conducted the verification against my employment at Hotel K L G International and found that it is not genuine documents in their research. I got shocked when I read through this letter. I did deep research about this letter my own and contacted my previous employer at Hotel K L G International in India. I have told them everything about this letter. He got shocked as well. He said to me that he did not receive any call from the department. He is happy to confirm my employment at Hotel K L G International. I am very confident that It must be something miscommunication between Department of home affairs and Hotel K L G International management regarding my employment history at Hotel K L G International. I started by work at Hotel K L G International on 1^st June, 2018 till December, 2021. It was the best experience to work with Hotel K L G International. I had learnt many new things in career during my employment at Hotel K L G International. But I am person like to achieve best in my life so I have decided to continue my study in commercial cookery leading to hospitality management to set me up for long term success in hospitality sector. It is my first and last wish to establish my own hospitality business in India. So, I planned to continue further study to develop more skills. I am very excited to be on right track to achieve my dreams.

    But I got shocked when I received the email from the department of home affairs regarding my visa cancellation. In the beginning I was very upset and confused that how I can prove myself genuine employees at Hotel K L G International. But I have decided to collect the evidence from my employer and prove myself genuine employees at Hotel K L G International. I have spoken to my employer about this letter and he does not have any issue to verify my employment at Hotel K L G International. I do understand that Hotel K L G International had renovation going in hotel from March, 2020 but they had kept few of the employees during renovation to run hotel operation with minimum staff. I was one of staff who worked during renovation as well to deal with our permanent clients. I was not at Hotel site during lockdown but I return back to my duties as soon lockdown restrictions removed. It is mentioned in letter which is issued by employer of hotel K L G International that operation was running with minimum staff during renovation as well. I like to declare that all the documents and information provided with my visa application is true and genuine. It is humble request that kindly re-check my employment with Hotel K L G International before making any decision to visa cancellation. If you have any further doubts about my employments at Hotel K L G International please let me know I am happy to assist you with any query. I am standing tall with all the documents I have provided to department of Home Affairs to support my student visa application under subclass 500. Please make your decision after verifying all the documents again because it is all about my career and future plans. I got my parents have done big investment towards my study in Australia. I do not want to let them down. I am very hopeful that you will make the fair decision after confirming my employment at Hotel K L G International.

    I like to mention that currently I am studying at Chamber School of Business for certificates in commercial cookery leading to diploma of hospitality management. I have started my study journey at Le Cordon Bleu Sydney campus but I have faced many difficulties during my study at Le Cordon Bleu. I had decided to find the College where I feel more comfortable and enjoy my study. I have spoken to my parents about this and decided to transfer new College before wasting my time. I am very proud to myself that I had selected Chamber School of business for my study in commercial cookery leading to diploma of hospitality management. I had completed my first term in commercial cookery at Chamber School of Business. In few weeks time I will be starting my second term to in commercial cookery to complete my first semester study at Chamber School of Business.  

    In the end I like to mention that I did not make any false claim to support my student visa application for Australia. It was mistake made by verification officer from Department of Home Affair to verify my employment at Hotel K L G International. I am submitting my documents with evidence and employment letter from Hotel K L G International Director Aman Grover. So, I am requesting to you that kindly re-check my employment with Hotel K L G International director Aman Grover. I am very confident that he will clear all the doubt about my employment at Hotel K L G International. I am very confident that you will make the fair decision about my student visa application.

    I am making this declaration that all the documents and information shared with my student visa application is true and genuine. I am taking full responsibility towards the documents in my student visa application.

11. Provided also is a letter from Aman Grover, Director, KML Hotel International dated 3 June 2022 which indicates that the applicant was a past employee of the hotel. The address of the hotel was provided. It is indicated that the hotel is only partially operating as renovations are continuing. Photographs are provided of the renovations. An offer is made to contact the author at an email address: [email protected] as well as an indicated telephone number.

12. Internet searches by the Tribunal confirmed that Hotel KLG International is operating at the address indicated in the correspondence. Open source information confirms an email address for the company for corporate inquiries as [email protected]

13. The Tribunal rang the telephone number and spoke to an individual who identified himself as Aman Grover and a director of KML Hotel International. The Tribunal indicated that he had provided supporting references in relation to the applicant asking for confirmation of the validity of those references. Mr Grover was not able to specifically remember or identify the applicant but indicated that if the Tribunal sent by email the various correspondence provided he would confirm the authenticity of the documents provided.

14. The Tribunal then wrote to the hotel attaching the letter dated 3 June 2022 as well as the hotel correspondence provided by the applicant in support of his visa application that was determined by the delegate to be bogus. The Tribunal in the email requested that a senior manager of the hotel confirm that the correspondence is genuine. No response was immediately received.

15. The Tribunal also notes that among the documents the applicant provided in support of his visa application are salary payslips for each of the months from March 2021 until August 2021.

16. In the hearing the applicant gave detailed and convincing evidence of his duties as housekeeping manager at the hotel and the situation that occurred during lockdown, when at times the applicant worked ‘offline’ but would also go into the hotel. The applicant indicated that a proportion of the staff were retained during the lockdown period. The hotel was still taking on some guests who tested negative for COVID-19.

17. The Tribunal put to the applicant at the hearing that it had written to Aman Grover to verify the authenticity of the documents provided that evidenced his employment at the hotel but that no response had been received.

18. The representative indicated that Aman Grover is a multi-millionaire who owns a number of different properties as potentially explaining why correspondence has not been responded to.

19. The Tribunal provided an opportunity following the hearing for the applicant to contact Mr Grover to confirm the authenticity of the relevant documentary evidence provided indicating employment.

20. After the hearing, the Tribunal received an email from Aman Grover from the email address gmhotelklg.com.  As indicated, open sources indicate this as an email contact for Hotel KLG International. Mr Grover indicates to the Tribunal that the applicant was an employee of the hotel from June 2008 until August 2021 and that the documents that the applicant has provided attesting to this are genuine.

21. On the day of the Tribunal hearing the applicant provided an affidavit dated 19 October 2023 from Sukhbir Singh indicating that she worked in the KGL Hotel as part of the housekeeping team from February 2017 until March 2023. She indicates that during part of her employment she was supervised by the applicant who was the housekeeping manager before he left for Australia in 2021 to study. She offers to be contacted to confirm this information.

22. The applicant indicated in the hearing that there is another former member of the housekeeping team the applicant worked with who would be available to verify the applicant’s employment and position at the hotel.

23. In terms of the enquiries made by the Department to establish the documents are bogus, the Departmental file contains an email from the Department of Department of Foreign affairs and Trade to the Department providing a spreadsheet which indicates the applicant along with another 17 individuals as being determined in an investigation to have provided fraudulent documents targeting the applicant’s Australian education provider. The spreadsheet is not on the Department’s file. The email says that verification outcomes are recorded in the ‘relevant RIDs’. This does not appear on the Departmental file and the Tribunal is not clear in any event what this is.

24. The delegate’s decision indicates that the Department did contact the hotel via open source information rather than the contacts provided by the applicant. However, the Department file provides other indication or evidence of this inquiry or response. The delegate indicates that it prefers the enquiries made by the Department to the supporting letter from the hotel dated 3 June 2022 outlined above.

1. The representative in the hearing submitted that the delegate’s decision does not indicate the detail of the verification checks that were claimed to be undertaken by the Department indicating that the supporting documents were bogus.

2. The evidence by the applicant in the hearing was detailed and probative in terms of his claimed position as housekeeping manager at the hotel up until the applicant left to come to Australia to study in December 2021.

3. An affidavit has been provided by an individual who attests that she worked with the applicant at the hotel in his position of housekeeping manager up until he came to Australia at the end of 2021.

4. The applicant has offered to provide details of another former employee that can attest to the applicant’s employment.

5. The Tribunal is persuaded from the applicant’s evidence in the hearing, the documentary evidence provided and the confirmation to the Tribunal from Mr Grover, ­that the applicant was indeed employed at KGL Hotel International from 2018 up until coming to Australia at the end of 2021, including remaining in employment in the hotel during COVID-19 lockdowns and current renovations.

6. While it is probative to a degree that the delegate states that enquiries were made demonstrating the supporting documents are bogus, there is no indication as to the detail of the enquiries that were made and the basis on which the documents were determined as bogus.

7. The Tribunal is not satisfied that this indication without detail of enquiries being made demonstrating the documents are bogus overcomes the probative evidence in the applicant’s favour including his convincing evidence in the hearing of employment from 2018 until late 2021 at the hotel and the supporting documents provided and the affidavit provided from an employee with whom the applicant worked on attesting to the applicant’s employment until the end of 2021.

8. The Tribunal was satisfied as to the genuineness of the applicant’s employment at the hotel up until the period indicated without the need for a further hearing.

9. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    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.