Siddiqui (Migration)

Siddiqui (Migration) [2019] AATA 1501 (1 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Muhammad Zeeshan Ahmed Siddiqui
Mrs Shamshad Zeeshan
Mr Muhammad Usman Ahmed Siddiqui
CASE NUMBER:  1732289
DIBP REFERENCE(S):  BCC2014/1532839
MEMBER:Amanda Mendes Da Costa
DATE:1 February 2019
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 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 01 February 2019 at 11:03am
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work ( Skilled )) – Federal Circuit Court remittal – employment agreement – fraudulent signatures on document – sponsor never heard of applicant – satisfied applicant not party to deception – Australian citizen son – difficulties resettling in Pakistan – continued employment with company – decision set aside – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 101-105, 107, 109, 140, 359AA, 362A
Migration Regulations 1994 (Cth), r 2.41, cl 457.223
CASES

MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in his visa application when he declared that he had a nominated position at Absolute Business Brokers Pty Ltd (the company). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, 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 applicant.
The matter is before the Tribunal as a result of an order of the Federal Circuit Court of Australia, made on 8 December 2017 in which a decision previously made by the Tribunal on 9 February 2015 was quashed and the application for review was remitted to the Tribunal for reconsideration.
The applicants appeared before the Tribunal on 31 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chris Panagiotis’s, a director of the company.
For the purposes of the review, the applicants provided the Tribunal with a copy of the delegate’s decision.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
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
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.
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.
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?
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 section 101(b) of the Act in the following respects:
·On 9 September 2013 the applicants lodged an application for a Subclass 457 visa.
·On the visa application form, the applicant declared that his sponsoring employer was Absolute Business Brokers Pty Ltd (ABB). In support of his employment with ABB the applicant submitted an employment agreement purportedly signed by Chris Panagiotidis, a director of ABB on 25 October 2013. The applicant’s signature was witnessed by Ismar Muratovito, an employee of ABB.
·The applicant was granted the Subclass 457 visa on 10 February 2014.
·On 23 June 2014 the Department received adverse information regarding the applicant’s employment with ABB. When interviewed by a Departmental officer on that date, Mr Muratovic stated that he never witnessed the signature of Chris Panagiotidis on the employment agreement dated 25 October 2013, his signature on the document was misspelt and he did not live at the stated address.
·On 23 July 2014 Chris Panagiotidis was interviewed by a Departmental officer. He stated that he did not sign the employment agreement dated 25 October 2013.
·The information provided by the applicant regarding his employment, on the visa application was not correct as ABB did not have a nominated position for him.
On 8 August 2014 a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant.
In his response to the NOICC, the applicant stated that he was offered a position as a ‘marketing specialist’ with ABB in October 2013. ABB gave all relevant documents regarding his employment to his migration agent to prepare and submit the application. He was informed by his migration agent that the visas were granted in February 2014. However, he was unable to contact Mr Panagiotidis until July 2014 regarding the commencement of his employment because he was suffering from chicken and was unwell for approximately two months.
The applicant further stated that Mr Panagiotidis contacted him in July 2014 to enquire why he failed to commence his employment with ABB and that during a meeting held in July 2014 Mr Panagiotidis offered him a full-time position with the company.
The delegate cancelled the visa on the basis that the applicant had breached s.109(b) of the Act and the delegate found that it was the preferable decision in all the circumstances to cancel the visa. The issue for the Tribunal in the present case is whether the ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.
Evidence of the applicant
The applicant is a National of Pakistan and came to Australia from Karachi in 2007. He holds a Bachelor of Microbiology degree obtained from a university in Pakistan and a Masters of Business Administration from Ballarat University, which was completed in 2009. For that purpose he applied for and was granted a subclass 485 visa, which expired on 9 September 2013.
The applicant is married and has a child aged seven years of age.
After the completion of his studies, the applicant commenced looking for employment but found that the positions usually required that the employee was an Australian citizen or permanent resident. He searched for companies which might need his skills on the internet and identified ABB as a prospective employer. He approached the company and was interviewed by Chris Panagiotidis about a position as a marketing specialist. The company already had a staff member who specialised in clients of Chinese background and had a position available for an employee of Indian or Pakistani background. Mr Panagiotidis told the applicant that he could not employ him as his visa was about to expire but advised him to consult with VIP Migration Agents who would advise him about the appropriate visa for which he could apply.
The applicant explained that he subsequently contacted Narrinder Singh, who he believed was a migration agent, employed by VIP Migration. Mr Singh requested that he provide him with his resume and academic qualifications, which the applicants sent to him. The applicant didn’t complete his visa application form although he signed a Form 80 document. He couldn’t remember any other forma signed by him.
Mr Narinder Singh showed the copy of an unsigned employment agreement which he said would be sent to Chris Panagiotidis for signing by him and the applicant. This document would then be forwarded to the Department. The applicant told the Tribunal that he was never sent this document and didn’t sign it.
The Tribunal showed the copy of an employment agreement (contained in the Department’s file) between himself and ABB dated 25 October 2013, which was purportedly signed by both Chris Panagiotis’s and the applicant and witnessed by Mr Narinder Singh.
The applicant told the Tribunal that he did not sign this document and the signature purporting to be his was not his signature. He explained that the employment agreement shown to him by Mr Singh had no signatures on it.
The applicant said that after consulting with Mr Singh and instructing him to lodge a visa application on his behalf he tried with difficulty to contact him regarding the progress of his application. On the day his previous application ceased, he managed to talk to Mr Singh at approximately 9pm when he was advised that he had been granted a Bridging visa, a copy of which was sent to him.
The applicant spoke to Mr Singh on one or two further occasions about the progress of his visa application. It was difficult to contact him as he travelled to India and didn’t answer email or voice messages for some months. In March 2014, Mr Singh sent the applicant a copy of his Subclass 457 visa.
After his visa was granted in February 2014, the applicant tried to contact Mr Panagiotidis. When he telephoned the offices of ABB, he was told by staff that Mr Panagiotidis was overseas and that no one in the company was aware that he had been employed by Mr Panagiotidis. Although the applicant had Mr Panagiotidis' mobile telephone number, it remained switched off and he was unavailable until July 2014. He was told by staff at ABB that Mr Panagiotidis would return to work in late July or August 2014. In answer to a question by the Tribunal, the applicant said he didn’t attempt to contact Mr Panagiotidis by email and there was no real reason for that.
The applicant further explained that he suffered from chicken pox in early 2014 and was very unwell. He conceded that his wife could have attempted to call Mr Panagiotidis during his illness and regrated that he didn’t ask her to do this on his behalf.
After the completion of his studies, the applicant commenced looking for employment but found that the positions usually required that the employee was an Australian citizen or permanent resident. He searched for companies which might need his skills on the internet and identified ABB as a prospective employer. He approached the company and was interviewed by Mr Panagiotis’s about a position as a marketing specialist. The company already had a staff member who specialised in clients of Chinese background and had a position available for an employee of Indian or Pakistani background. Mr Panagiotidis told the applicant that he could not employ him as his visa was about to expire but advised him to consult with VIP Migration Agents who would advise him about the appropriate visa for which he could apply.
The applicant explained that he subsequently contacted Mr Narrinder Singh of VIP Migration who requested that he provide him with his resume and academic qualifications, which the applicants sent to him. The applicant didn’t complete his visa application form although he signed a Form 80 document. He couldn’t remember any other forma signed by him.
Mr Singh showed the copy of an unsigned employment agreement which he said would be sent to Chris Panagiotis’s for signing by him and the applicant. This document would then be forwarded to the Department. The applicant told the Tribunal that he was never sent this document and didn’t sign it.
The Tribunal showed the copy of an employment agreement (contained in the Department’s file) between himself and ABB dated 25 October 2013, which was purportedly signed by both Chris Panagiotidis and the applicant and witnessed by Mr Singh.
The applicant told the Tribunal that he did not sign this document and the signature purporting to be his was not his signature. He explained that the employment agreement shown to him by Mr Singh had no signatures on it.
The applicant said that after consulting with Mr Singh and instructing him to lodge a visa application on his behalf he tried with difficulty to contact him regarding the progress of his application. On the day his previous application ceased, he managed to talk to Mr Singh at approximately 9pm when he was advised that he had been granted a Bridging visa, a copy of which was sent to him.
The applicant spoke to Mr Singh on one or two further occasions about the progress of his visa application. It was difficult to contact him as he travelled to India and didn’t answer email or voice messages for some months. In March 2014, Mr Singh sent the applicant a copy of his Subclass 457 visa. Mr Siddique told the Tribunal that Mr Singh didn’t request any payment from him for the lodgement of his visa application. He understood that Mr Panagiotidis was waiting to receive an invoice from Mr Singh for his services, but never received one.
After his visa was granted in February 2014, the applicant tried to contact Mr Panagiotidis. When he telephoned the offices of ABB, he was told by staff that Mr Panagiotidis was overseas and that no-one in the company was aware that he had been employed by Mr Panagiotidis. Although the applicant had Mr Panagiotidis’ mobile telephone number, it remained switched off and he was unavailable until July 2014. He was told by staff at ABB that Mr Panagiotidis would return to work in late July or August 2014. In answer to a question by the Tribunal, the applicant said he didn’t attempt to contact Mr Panagiotidis by email and there was no real reason for that.
The applicant further explained that he suffered from chicken pox in early 2014 and was very unwell. He conceded that his wife could have attempted to call Mr Panagiotis’s during his illness and regrated that he didn’t ask her to do this on his behalf.
In July 2014 he eventually spoke to Mr Panagiotis’s who explained that he had been interviewed by Departmental staff who had shown him an employment agreement purportedly signed by the applicant. Mr Siddique told Mr Panagiotis’s that he had not signed that document.
The applicant said that in July 2014 Mr Panagiotis’s had also spoken to him about employment with ABB and advised him that it was necessary for him to sign an employment contract. The applicant and Mr Margaritis signed the contract on 11 August 2014. That agreement was signed at the offices of ABB.
Pursuant to s.359AA of the Act, the Tribunal invited the applicant during the hearing to comment on or respond to the following information, which was contained in the Department file and which the Tribunal considered would be the reason or part of the reason for affirming its decision under review:
During the interview conducted by Departmental officers with Petros Margaritis on 11 June 2014, Petros Margaritis stated that he never heard of the applicant and that the only person the business sponsored was Ms Mu.
On 12 June 2014, Petros Maragritis sent an email to the Department confirmed in writing that he was unaware of sponsorship and nomination applications lodged in support of the applicant’s visa application and that ABB never sponsored anyone but Ms Mu.
On 23 July 2014, another interview with Chris Panagiotis’s and Petros Margaritis was conducted by Departmental officers. On that occasion Mr Panagiotidis informed the Departmental officers that at the time of this interview he did not sign any employment agreement with the applicant.
In response, Mr Siddique told the Tribunal that he dealt with Mr Panagiotidis in discussing his employment with ABB in late 2013. Mr Margaritis was not present during these discussions and he did not have any contact with him until he commenced employment with the company in June 2014. Mr Siddique said that he was not sure whether Mr Magaritis had any communication with VIP Migration regarding his visa application and noted that during 2013-2014, there was a change of directorship of the company from Mr Panagiotidis to Mr Magaritis.
Mr Siddique further explained that after his interview with Departmental staff on 23 July 2014, Mr Panagiotidis spoke to him. They each acknowledged to the other, that they had not signed any employment agreement for the applicant with ABB on 25 October 2013.
Mr Singh informed him that a draft copy of the employment agreement was sent to the Department after it was mistakenly uploaded onto the Department’s website by a staff member of VIP Migration.
Evidence of Chris Panagiotidis
Mr Panagiotidis is a director of ABB and owns 70% of its shares. Mr Margaritis is the other director and 30% shareholder in the company. Mr Panagiotidis created the business in 2007 with another investor. In 2010-2011 Mr Panagiotidis purchased his partner's investment in ABB and he offered Mr Margaritis (who was then an employee) equity in the company.
Mr Panagiotidis explained that he is a licensed real estate agent and the business originally focused on selling domestic and commercial real estate. It has developed over the past few years into specialising in selling businesses and some commercial property sales for its existing clients. ABB has approximately 15 employees and is located in Mulgrave, Victoria.
Mr Panagiotidis told the Tribunal that until early 2014 he was actively involved in the day-day-management of the business. However after developing health problems in late 2013, he decided to transfer responsibility for ‘hands on management’ to others. In 2014 Mr Margaritis assumed responsibility for management for the company, although Mr Panagiotidis remained the majority shareholder and retained an interest in the business.
At the end of 2014 Mr Panagiotidis underwent major surgery and spent a considerable period of time in hospital in 2015. His daughter currently manages the business.
During the period August to November 2013 Panagiotidis met the applicant who was brought into the offices of ABB and introduced to him by Mr Narrinder Singh (Mr Singh), a migration agent employed by VIP Migration who had previously acted for ABB in relation to nomination and visa applications for another employee of the company. Mr Narinder Singh knew that Mr Panagiotidis was looking for a new employee to develop the company’s business with clients from the subcontinent. Mr Singh was prepared to act for the company and the applicant in respect of the nomination and visa applications, but Mr Panagiotidis was not prepared to instruct him to take any action before he understood the applicant’s employment history and suitability for the position.
Mr Panagiotidis told Mr Singh to provide him with information and documents about the applicant, whom he would consider for employment. Mr Panagiotis’s wanted to have a draft employment agreement before consulting with Mr Margaritis about employing the applicant.

In late 2013 Mr Singh returned to the offices of ABBB with his employer, Mr Chugha Jagjit Singh, who was taking over responsibility for his clients whilst he travelled to India. The appointment was only for 10 to 15 minutes and was for the purpose of Mr Panagiotis’s meeting Mr Singh’s employer. No documents about the applicant were provided to Mr Panagiotidis at this meeting.
In 2014 Mr Panagiotidis was working in the business on an “on and off” basis. He telephoned the office when he wasn’t working there. He also travelled overseas in June/July 2014. He said he couldn’t remember if he received any messages from the applicant in 2014, prior to his overseas trip.
Mr Panagiotis’s thought nothing more about the applicant until July 2014. He was travelling overseas when he received a telephone call from Mr Margaritis who advised that the Department had contacted him about the applicant’s employment with the company.
Mr Panagiotidis confirmed that he was interviewed by Departmental officers on 23 July 2014 when he told them that he had not signed an employment agreement with the applicant on 25 October 2013. He told the Tribunal that during this interview he was showed and document which purported to be an employment agreement between ABB and the applicant, signed by Chris Panagiotidis. This document was marked with the word ‘Draft’. Mr Panagiotidis explained that he did not sign this document; the signature on the document which purported to be his signature, was not actually his own signature; and he had never signed an employment agreement with the applicant.
Following his interview with the Departmental officer, Mr Panagiotidis telephoned Mr Singh about the employment contract for the applicant. Mr Singh said that he didn’t know what had happened and that his staff must have sent the wrong document to the Department. He told Mr Panagiotidis that the document was meant to be sent to him and not the Department.
In July 2014 Mr Panagiotidis met with the applicant and employed him for approximately two months. He said that the applicant was a good employee but unfortunately he could not continue with the company due to visa difficulties. They continued to communicate by telephone over the following two years and the applicant visited the company’s offices on a couple of occasions. Mr Panagiotidis told the applicant that he was prepared to re-employ him when his visa permitted.
In June or July 2018 the applicant recommenced his employment with ABB when his visa permitted him to work. Given that Mr Panagiotidis was away at the time, Mr Margaritis signed an employment agreement on behalf of the company, with the applicant, on 17 July 2018. Mr Panagiotidis was not sure of the applicant’s current salary but estimated that it was between $52,000-56,000 and that the company’s bookkeeper had arranged payments to the applicant.
On 19 October 2018 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information that it considered would be the reason or part of the reason for affirming the decision under review.
The Tribunal also invited the applicants to provide information regarding the applicant’s employment with ABB.
On 2 November 2018 the applicants provided the following documents to the Tribunal:
·Statutory declaration of Ismar Muratovic, dated 1 November 2018.
·Statutory declaration of Petros Margaritis, dated 1 November 2018.
·Statutory declaration of Chris Panagiotidis, dated 1 November 2018.
·Written submissions.
In his declaration, Mr Muratovic confirms that he attended the meeting at the offices of the Department with Mr Panagiotidis on 11 June 2014. He states that they were shown documents such a profit and loss statement for ABB and an employment contract that was supposedly from ABB. Mr Muratovic said that he noticed that the employment contract misspelt his name as “Muravito”, bore the wrong address for him, contained a signature that was not his and had a “DRAFT” watermark through it.
Mr Muratovic explains that as a Senior Business Broker, he had no role in signing employment contracts on behalf of ABB. He had never seen the employment contract before being shown it be Departmental staff at the interview.
In his declaration, Mr Margaritis states that he attended an interview at the Department’s office with Mr Muratovic on 11 June 2014. He explains that they were shown a number of documents including an employment contract which he identified as being a fake because the signatures on the document were not those of either Chris Panagiotidis or Ismar Muratovic. The document also had a “DRAFT” watermark on it and Mr Muratovic’s signature was misspelt as “Muratovito”.
Mr Margaritis further states that there were a number of markings “Error! Bookmark not defined” on the contents page of the employment agreement that bore Mr Singh’s signature. Mr Margaritis identifies a copy of the document he was shown by Departmental staff as the document at pages 186-193 on the PDF version of the Department’s file, provided to the applicant by the Tribunal pursuant to the applicant’s s. 362A request.
Mr Maragritis further states in his declaration that he attended a further meeting at the offices of the Department with Mr Panagiotis are on 23 July 2014. At this meeting they were shown a document purporting to be an ABB employment contract which contained even more errors than the one shown to him on 11 June 2014. The document bore a “DRAFT” watermark, the contents page had “##error##” on a line ¾ page down and “[INSERT COMPANY NAME HERE}” appeared on a few other pages throughout the document. Mr Margaritis states that he had been unable to find a copy of this version of the employment agreement on the material provided to the applicant by the Tribunal pursuant to s.362A of the Act.
In his declaration Mr Panagiotis’s states that when he was interviewed by Departmental staff on 23 July 2014 he was shown some documents amongst which he recognized as financial documents of ABB but did not recognize another documents which Departmental staff told him was an employment agreement that he had signed.
Mr Panagiotidis further states that the signature on the document was not his and he had never seen the document before. He told Departmental staff that this document may have been a sample employment agreement that the immigration agent was supposed to send him to look over. The document had a watermark “DRAFT” on every page and markings “Error! Bookmark not defined” on the contents page of the employment agreement that bore Narrinder Singh’s signature on it.
In his declaration, Mr Panagiotidis also identifies a copy of the document at pages 186-193 in the PDF version of the Department’s file which was provided to the applicant pursuant to a request to the Tribunal under s.362A of the Act.
The submissions made on behalf of the applicant may be summarised as follows:
·It was relevant for the Tribunal to take into account that the company has evinced a desire to employ the applicant.
·The applicant accepts that he should have been more conscientious in relation to his visa application but it was understandable that he relied on his then migration agent in applying for a visa and assumed that he was honest and competent.
·The company successfully nominated another employee, who was granted a subclass 457 visa.
·The applicant should not be held responsible for the actions of Mr Narinder Singh, who was not a registered migration agent.
·The applicant’s failure to contact Mr Panagiotis’s in early 2014 was understandable, given he was suffering from chicken pox for several weeks.
Based on the evidence before it, the Tribunal finds that the only person with the legal authority to provide instructions for lodgement of sponsorship and nomination applications and sign employment agreements on behalf of ABB in 2013 was Mr Petros Margaritis, the Managing Director of ABB.
In considering whether there was non-compliance with s.101(b) of the Act, and pursuant to s.108 of the Act, the Tribunal has considered the applicant’s written response which he provided to the Department in reply to the s.107 Notice. In this response the applicant stated that in October 2013he was selected or a marketing specialist position with ABB. His visa application was lodged on 9 September 2013, which was before he was selected for the position. The Tribunal notes that the applicant’s subclass 457 visa applications were lodged on the same date (9 September 2013) when the applicant’s subclass 485 was due to expire.
The Tribunal finds that neither Mr Margaritas nor Mr Panagiotis’s signed an employment agreement with the review applicant at any time prior to August 2014.
Both the applicant (in his oral evidence) and Mr Margaritis (in his statutory declaration) stated that their signatures appearing on the employment agreement dated 25 October 2013 were forged.
The Tribunal finds that the applicant had no employment agreement with the sponsoring business either at the time of the visa application (9 September 2013) or at the time of the visa grant (10 February 2014). The Managing Director of the sponsoring business did not authorise lodgement of sponsorship and nomination applications with the Department. Accordingly, the Tribunal finds that the applicant provided incorrect answers in the visa application lodged with the Department on 9 September 2013.
The Tribunal notes that there is a requirement in s.101(b) of the Act that a non-citizen must complete his or her application in such a way that no incorrect answers are provided.
For these reasons, the Tribunal finds that there was non-compliance with section 101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:
·the correct information;
·the content of the genuine document (if any);
·the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine 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 obligation under Subdivision C of Division 3 of Part 2 of the act;
·any other instances on 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; and
·any contribution made by the visa holder to the community.
Whilst these factors must be considered, they do not represent an exhaustive statement of the circumstances that may properly be considered in any given case; MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy. The relevant policy is set out in the Department’s procedural Advice Manual (PAM 3) ‘general visa cancellation powers’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia, breaching its international obligations.
The correct information
The Tribunal accepts that the correct information is that at the time the visa application was lodged and when the visa was granted, the applicant was not employed by ABB. The managing director of the company which was the sponsoring business did not authorise lodgement of the sponsorship and nomination applications with the Department. Accordingly the Tribunal finds that the applicant provided incorrect details of his sponsoring employer.
The likely effect on a decision to grant a visa or immigration clears the visa holder of the correct information or the genuine document
The Tribunal finds that the likely effect of the correct information being provided is that the applicant would not have met the relevant criteria for the grant of a subclass 457 visa as cl.457.223(4)A) requires that the applicant is employed in the nominated occupation. The Tribunal is satisfied that the likely effect of the correct information being provided to the Department is that the applicant would not have been granted the visa.
The circumstances in which the non-compliance occurred
The Tribunal is satisfied that incorrect information about the applicant’s employment was provided for the purpose of the visa application. The Tribunal is further satisfied that the applicant was aware that his subclass 485 visa was valid until 9 September 2013 and that he was required to provide information regarding his sponsor (ABB) at the time of his application for the subclass 457 visa.
The Tribunal accepts that the applicant engaged the services of his migration agent to lodge the subclass 457 visa, despite not having an employment agreement or an offer of employment from an authorized person at ABB.
The Tribunal notes that despite stating in his written response to the Department received 15 September 2014 that he was selected for a marketing specialist job by ABB in October 2013.
The present circumstances of the visa holder
The applicant told the Tribunal that he commenced employment with ABB in June 2014 and was working with the company’s sales and business teams, targeting the Indian community in Melbourne for business opportunities. He initially worked at ABB intermittently until late 2015 when he recommenced full-time work with the company. When he made his application for judicial review to the Federal Circuit Court in June 2016, the Department removed the work rights attached to his bridging visa and he could no longer continue his employment with the company.
The applicant further explained that when the Department restored his work rights in February 2018, he recommenced his employment with ABB and in July 2018 that employment became full-time. He was engaged in making contacts within the Indian/Pakistani community in Melbourne to identify business opportunities for the company. This evidence was supported by that of Mr Panagiotis’s who confirmed that the applicant is currently employed on a full-time basis by ABB.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal holds some concerns for the applicant’s behaviour after granted the visa in February 2014, particularly his tardiness in contacting Mr Panagiotidis regarding the commencement of his employment with ABB. However, it notes that the applicant was ill for a period of time in early 2014 and that Mr Panagiotidis was not working full time in the business at that stage and travelled overseas in the first half of 2014. This created difficulties for the applicant in making arrangements to commence his employment with the company.
The Tribunal is satisfied that the applicant was not ‘a party’ to the deception practised by Mr Singh and that he had a genuine expectation of commencing employment with ABB following the grant of his visa.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is satisfied that apart from the provision of a bogus document, being the purported employment agreement dated 25 October 2013, there is no evidence of any other non-compliance by the applicant.
The time that has elapsed since the non-compliance
The Tribunal finds that the non-compliance occurred when the applicants lodged the visa applications on 9 September 2013, over five years ago.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence of any breaches of the law since the non-compliance.
Any contribution made by the holder to the community.
The applicant did not made any claims in this respect.
The Tribunal has also considered the matters set out in PAM3. The Tribunal acknowledges that the secondary applicants had their visas consequentially cancelled under s.140(1) of the Act, as their visas were granted on the basis that they were members of the applicant’s family unit.
The Tribunal accepts that it would be difficult for the applicant’s wife and son if the applicant’s visa was cancelled and they were required to return to Pakistan. However, the Tribunal is satisfied that the cancellation of the applicant’s visa would not necessarily lead to the separation of the applicant from his family. The Tribunal accepts that the applicant and his wife have settled in Australia and that their son was born in this country.
The Tribunal further acknowledges that if the applicant’s visa is cancelled he faces the prospect of returning to Pakistan. However there is no evidence before the Tribunal which indicates that the return of the applicant to Pakistan would lead to a breach of Australia’s non-refoulement obligations.
The applicant told the Tribunal that it would be disastrous for him and his family if he was unable to remain in Australia. His son was born here and is an Australian citizen. Mr Siddique said that he provided financial support to his parents in Pakistan. He had not returned there for 11 years; as unaware of any employment opportunities for him in Pakistan.
The applicant also told the Tribunal that he was concerned about the educational opportunities and social progress for his son if he accompanied him in returning to Pakistan.
The Tribunal has taken the above matters into account and accepts that it would be difficult for the applicant and his family to return to Pakistan.
The Tribunal notes that a subclass 457 visa is a temporary visa, the grant of which does not guarantee that the visa holder will subsequently be granted a permanent visa in Australia. The Tribunal further notes that the applicant holds a post graduate qualification (MBA) from Ballart University, which would further the applicant’s employment prospects both in Australia and overseas.
On balance, the Tribunal has accorded greater weight in this matter to the personal circumstances of the applicant, particularly the fact that his son was born in Australia and has lived his life here and attended school in Australia. The Tribunal has also taken into account that ABB has continued to employ the applicant (when his visa status has permitted) since 2014 and that the applicant continues to have employment with the company.
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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION

100. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
101. The Tribunal has no jurisdiction with respect to the other applicants.
Amanda Mendes Da Costa
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.

[2019] AATA 1501

1 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice