Shijo (Migration)

[2018] AATA 5493

Shijo (Migration) [2018] AATA 5493 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Simy Shijo
Mr Shijo Mathew
Miss Angelina Mathew
Master Aiden Mathew

CASE NUMBER:  1801087

DIBP REFERENCE(S):  BCC2016/3758689

MEMBER:Kira Raif

DATE:20 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 – Skilled – Regional (Provisional) visa.

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

Statement made on 20 November 2018 at 5:06pm

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – ground for cancellation – incorrect information in visa application – bogus documents – employment history – staff attendance log – renovation of hospital prior to visit of Departmental staff – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 109, 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
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 Immigration to cancel the first named applicant’s Subclass 489 – Skilled – Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicants are nationals of India. The first named applicant (‘the applicant’) was born in May 1984. She was granted the Class SP Skilled Regional Family Sponsored visa on 15 December 2015 and the visa was valid until December 2019. On 29 November 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 10 January 2018. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to 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 appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s supervisor, Ms Samuel. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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.

6. 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.

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

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(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.

8. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. 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 and s.103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.On 6 May 2015 the applicant made the application for the Subclass 489 visa. As part of that application the applicant completed and signed the application form.

    b.On the application form:

    i.In response to a question about her employment history, the applicant stated that she has been employed in the last 10 years.

    ii.In response to a question seeking details of employment undertaken in the last 10 years the applicant gave the following information:

    Position   registered nurse
    Employer name         Shivam Vishwa Hospital, India
    Date from / to            01/05/13 – 31/10/14

    Dutiesperforming physical examinations and giving medicines prescribed by the doctor to the children;

    Nebulisation;
    IV cannulation;
    IV fluid therapy.  

    Position registered nurse

    Employer name         Shivam Vishwa Hospital, India

    Date from / to            23/01/12 – 15/09/12

    Dutiesperforming physical examinations and giving medicines prescribed by the doctor to hospitalised patients;

    Truthfully inform patients about their children’s health, at the same time offer them emotional support and strength;
    Taking temperature, blood pressure, respiratory rate and heart rate of patients.

    c.In support of her migration application the applicant provided a work reference from the Nursing Supervisor at the Shivam Vishwa Multi-Speciality Hospital dated 5 July 2014. The reference states that the applicant was employed as a full-time registered nurse in the Paediatric Intensive Care Unit from 23 January 2012 to 15 September 2012 and from 1 May 2013 to the date of the letter, 5 July 2014.

    d.On 16 September 2015 the offshore post in New Delhi contacted Shivam Vishwa Multi-Specialisty Hospital and verified the applicant’s employment reference as genuine, based on verbal confirmation by telephone from the author of the work reference. The applicant was granted the visa on 15 December 2015.

    e.Further inquiries were made with the hospital. During a visit to the hospital, it was determined that the visa applicant did not work at the hospital as claimed. The primary decision record indicates that the applicant does not appear on the staff attendance log for the months of July 2012, November 2013, February 2014 and March 2014.

11. In her written response to the NOICC the applicant states that the information she provided in her application was correct and that the work experience letter was genuine. The applicant states that she had contacted her employer to discuss the discrepancy and the employer explained that due to the renovation of the hospital prior to the visit of the Departmental staff, some past employee’s records were displaced. The employer issued a further letter dated 5 December 2017 confirming the applicant’s employment during the above-mentioned periods.

12. The applicant provided a written submission to the Tribunal on 1 November 2018. The applicant states that there are no grounds for cancelling her visa. The applicant outlines the family’s immigration history. She refers to the Department’s verification of her employment, noting that the verification took place two years apart and resulted in contradictory findings. The initial finding supported the applicant’s claims while the second verification is said to be inconsistent with her evidence. The applicant states that there were no bogus documents as her employment letter was genuine and all the information in her visa application was correct and factual.

13. The applicant states that subsequent to the NOICC being issued, she contacted her employer to question the discrepancy and the employer explained that due to renovations at the hospital prior to the DIBP visit, some of the past employee records were misplaced and could not be located. The employer issued a letter on 5 December 2017 confirming the applicant’s employment during the relevant period. The applicant notes that the employer confirmed her employment when the work reference was first issued, during the first verification in September 2016 and in December 2017 and the applicant claims insufficient weight was given to these confirmations.

14. The applicant provided additional evidence of her employment to the Tribunal. This includes a letter from her supervisor, the Nursing Superintendent and copies of staff attendance logs which were missing during the second verification. She subsequently provided extracts from the Register of Attendance. The Tribunal is mindful that the Register does not cover the months referred to in the Department’s investigations.

15. The applicant stated in oral evidence that when the Immigration officers visited the hospital, it was under renovations and some documents were missing because some of the documents were in another branch. The applicant notes that the attendance register has now been submitted.

16. The applicant told the Tribunal that she was paid in cash during her work at the hospital, so there are no bank records confirming her employment. She said she did not pay tax because her income was below taxable level. There is no taxation record for her employment at the hospital. The applicant said she had submitted payslips with her original application and these have subsequently been provided to the Tribunal.

17. The Tribunal discussed with the applicant the Attendance Register, noting that her name appears as the last name on every sheet. The applicant said she was the last person who joined the hospital.

18. The applicant told the Tribunal that she did not take time off while working at the hospital. She said that between September 2012 and May 2013 she travelled to Australia to get her registration. She took one month off for the birth of her daughter.  She had no other leave but worked until the end of October 2014 and then travelled to Australia.

19. The Tribunal took evidence from Ms Samuel, the nursing supervisor. Ms Samuel confirmed that the visa applicant was working as a nurse in a paediatric department between January 2012 to September 2012 and from May 2013 until she went to Australia. Ms Samuel said the visa applicant took one month’s maternity leave but no other leave. Ms Samuel’s evidence was consistent with that of the applicant.

20. The applicant’s evidence is that the documents were not available at the time of the Departmental visit but have since been provided. The applicant notes that she has been employed in other hospitals and also in Australia as a nurse. The Tribunal acknowledges the additional evidence that has been presented by the applicant, including a statement from the hospital dated 5 December 2017 which explains that due to the renovations in the hospital, some of the employment documents were misplaced, as well as the applicant’s payslips.

21. The Tribunal has considered the totality of the evidence before it. The Tribunal notes that the basis for the delegate’s decision relates to the absence of documentary evidence of the applicant’s employment at a particular period. It is not apparent from the Departmental inquiries that there was no evidence of the applicant’s employment at the hospital at any period, rather the concern was for particular months.

22. The Tribunal acknowledges the applicant’s evidence that her employment was previously verified before she was granted the visa. The Tribunal considers it plausible that not all records were available at the time of the Departmental visit and additional evidence has been presented to the Tribunal. The Tribunal also acknowledges the broadly consistent evidence of the applicant and her supervisor Ms Samuels concerning the circumstances of the applicant’s employment.

23. The Departmental inquiries raise concerns about the applicant’s employment and the possibility that the applicant did provide bogus documents or incorrect answers in her application form concerning her employment. However, that is not sufficient. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32].

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

24. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

25. The Tribunal has formed the view that the concerns raised as part of the Departmental investigations do not provide sufficient information and are not of a sufficiently detailed and probative nature so as to form positive satisfaction that the applicant had breached s.101 and s.103 of the Act. In the Tribunal’s view, such concerns raise a mere possibility of the breach, which is not sufficient to give rise to the power to cancel. Should further information become available, the cancellation of the visa held by the applicant may be considered anew.

26. 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.

    Conclusion

27. 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

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 – Skilled – Regional (Provisional) visa.

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

    Kira Raif
    Senior Member