SIDHU (Migration)

SIDHU (Migration) [2020] AATA 722 (13 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurpreet Singh SIDHU
CASE NUMBER:  1710879
DIBP REFERENCE(S):  BCC2016/3161595
MEMBER:Jennifer Cripps Watts
DATE:13 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 Temporary Work (Skilled) visa
Statement made on 13 March 2020 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Skilled) – incorrect information in visa application – work experience – work at two restaurants owned by two companies with same director – periods of time worked –companies wound up or deregistered – work reference on letterhead of deregistered company – applicant’s current circumstances – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision that appeared to have been made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The visa was cancelled on the basis that the applicant had breached s.101(b) of the Act because he gave or provided incorrect answers in his visa application (that is the subject of this review). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be not be cancelled.
On 15 August 2017, the applicant applied for review and provided the Tribunal with a copy of the Department’s decision. The applicant appeared before the Tribunal on 26 August 2019 to give evidence and present arguments and was represented in relation to the review by his registered migration agent, Mr Sanjiv Ahuja.
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 impose obligations on 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 this case, the Department officer was not properly delegated. The Tribunal is of the view that it has jurisdiction to review the decision with all the powers of the original decision maker as if they had been properly delegated which extends, in this case, to the Department officer’s issuing of the s.107 notice. The Tribunal is satisfied that there were no defects in the s.107 notice itself and that the statutory purpose of providing the applicant with the opportunity to show that the grounds for cancellation did not exist, or for him to put forward reasons why the discretion to cancel should not be exercised, was served. The s.107 notice was sent to the applicant and he responded to it in writing.
By written Notice of Intention to Consider Cancellation (NOICC) under s.2019 of the Act, on 6 April 2017, the Department informed the applicant that he had been non-compliant with s.101(b) of the Act, which requires, essentially, that a visa applicant must not give or provide incorrect answers in their visa application.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act in the following respects, essentially that the applicant provided information in relation to the Subclass 457 visa application that he worked for Gurpreet Batra Pty Ltd at the Kandos Indian Tandoori Restaurant (the Kandos restaurant):
a.In the online visa application generated on 5 May 2016 where the applicant included that he had worked at the Kandos restaurant as a restaurant manager from 1 October 2015 to 1 May 2016;
b.In the online visa application generated on 5 May 2016 where the applicant declared that the information in the application was complete, correct and up-to-date;
c.In the ‘Form 80 – Personal particulars for assessment including character assessment’, signed and dated 8 March 2016, that was uploaded to the online application on 15 May 2016, where the applicant included that he commenced worked at the Kandos restaurant as a restaurant manager in October 2015 and that his employment there was ‘current’; and
d.In a work reference on Gurpreet Batra Pty Ltd letterhead, signed by Dave Batra - Director, dated 12 March 2016 (the work reference), provided by the applicant when it was uploaded to the online application on 6 May 2016, including that he ‘currently’ worked part-time at the Kandos restaurant as a restaurant manager from 1 October 2015.
The applicant responded to the NOICC on 27 April and 2 May 2017 and attached documents including, relevantly:
a.Written submission signed by the applicant and his migration agent;
b.A second letter (of explanation relating to the work reference dated 12 March 2016) on Mini Batra Pty Ltd from Dave Batra, signed and dated 24 March 2016; and
c.Four payslips for the period 17 February to 21 June 2016.
In the present matter, the Tribunal is satisfied that the necessary state of mind has been reached to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Background
The applicant is a citizen of India who first arrived in Australia holding a student visa in March 2013. He completed a suite of courses including a Certificate IV, Diploma and Advanced Diploma in Business, from 2013 to 2017 and worked part-time while he held a student visa up to the grant of his Subclass 457 visa. He gave oral evidence at the Tribunal hearing that he is married to Amanpreet Kaur, who currently resides in India.
The applicant commenced work part-time as a restaurant manager for the company Gurpreet Batra Pty Ltd, working across two of their restaurants; the Kandos restaurant and Kurryleaf in Minchinbury. Registration of the Kandos restaurant was cancelled on 17 January 2016 and liquidators were appointed for the company Gurpreet Batra Pty Ltd which operated the Kandos restaurant. Gurpreet Batra Pty Ltd was wound up on 4 February 2016 on application by the Australian Taxation Office.
From October 2015 to January 2016, the applicant worked part-time as a restaurant manager at both the Kandos restaurant and Kurryleaf, for Gurpreet Batra Pty Ltd. Then, from mid-January 2016, the applicant worked part-time at Kurryleaf only until he lodged the visa application, for Mini Batra Pty Ltd. Dave Batra was a director of both companies.
On 5 May 2016, the applicant applied for the Subclass 457 visa that is the subject of this review in the nominated occupation of Café or Restaurant Manager, on the basis of a nomination approved under s.140GB of the Act for Vir Pty Ltd. The visa was granted on 6 September 2016. An application was made on 27 March 2017 for the applicant’s wife to be added as a dependant to the applicant’s Subclass 457 visa.
It is noted in the delegate’s decision that Dave Batra was a director of Gurpreet Batra Pty Ltd, Mini Batra Pty Ltd and Vir Pty Ltd. Gurpreet Batra Pty Ltd was wound up in February 2016, Mini Batra Pty Ltd was deregistered on 23 October 2016 and monitoring of Vir Pty Ltd that commenced on 14 October 2016 resulted in cancellation of their standard business sponsorship, on 7 April 2017, and the company was deregistered in November 2018.
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.
It is not in dispute that that the Kandos restaurant closed in January 2016 and the company, Gurpreet Batra Pty Ltd, was wound up in February 2016.
With his visa application, and in the application itself, the applicant provided information that indicated he was working for Gurpreet Batra Pty Ltd at the Kandos restaurant for about seven months, from October 2015 to May 2016, including the period January to May 2016, which was after the Kandos restaurant had closed and Gurpreet Batra Pty Ltd had been deregistered by ASIC.
However, the director, Dave Batra, had by then another company, Mini Batra Pty Ltd, through which he ran Kurryleaf in Minchinbury (and a number of other restaurants), and the applicant claims that he worked at both the Kandos restaurant and Kurryleaf from October 2015 to January 2016, and at Kurryleaf only from January to May 2016. The applicant has provided the Tribunal with PAYG statements, ATO Notices of Assessment and his individual tax returns covering the relevant period.
The applicant claims, essentially, that providing the work reference on the wrong letterhead (Gurpreet Batra Pty Ltd), on 12 March 2016 when the company had already been deregistered, was a genuine mistake. But, he claims that the dates he worked as a part-time restaurant manager for Dave Batra (during periods he was a director of Gurpreet Batra Pty Ltd and Mini Batra Pty Ltd) were correct, relevant to his work experience as a part-time restaurant manager. That is, for about seven months, from October 2015 to May 2016 (at both the Kandos restaurant and Kurryleaf during the relevant periods detailed above). The correct information is that:
a.He worked for Dave Batra, first employed by Gurpreet Batra Pty Ltd at the Kandos restaurant and Kurryleaf from October 2015 to January 2016;
b.Then he was employed by Mini Batra Pty Ltd at Kurryleaf, also run by Dave Batra, from January 2016 to May 2016, and that information should have been provided on Mini Batra Pty Ltd letterhead; and
c.He had worked at both the Kandos restaurant and Kurryleaf from October 2015 to May 2016 (as opposed to including in his Form 80 that accompanied the visa application, at Department folio 14, that he worked only at the Kandos restaurant during that period); and
d.He had worked at both the Kandos restaurant and Kurryleaf from October 2015 to May 2016 (as opposed to including in his visa application lodged on 5 May 2016, at Department folio 18, that he only worked at the Kandos restaurant during that period)
The applicant contends that he has not gained any benefit from providing the incorrect information, as it remains that his relevant work experience as a part-time restaurant manager was for the same seven month period as that stated in the visa application, Form 80 and Gurpreet Batra Pty Ltd work reference, albeit for two different companies and at two different restaurants.
The Tribunal is persuaded by the argument that it would have made ‘no difference’ to the outcome if the correct information was provided. However, what is of significant concern is that it is the Tribunal’s view, having regard to the evidence cumulatively, that the applicant was at best careless when he provided the incorrect information about his work experience from October 2015 to May 2016 in relation to his Subclass 457 visa application. The integrity of Australia’s immigration system is upheld by applicants providing correct information in their visa applications and not carelessly, recklessly or deliberately providing incorrect information.
The Tribunal does not accept it was an innocent mistake that the applicant provided incorrect information, or that he can lay blame at the feet of third parties, as he has submitted. On any reasonable reading, particularly of the work reference, it would have been obvious, and certainly to the applicant and Dave Batra, that the work reference was on the wrong letterhead, of a deregistered company, and that it stated that he had worked ‘at’ the Kandos restaurant from October 2015 to May 2016, when the Tribunal is satisfied they both knew it had closed (in January 2016).
Having considered relevant matters before it, the view reached by the Tribunal is that the applicant knew the information was incorrect but speculates that he knowingly provided it anyway without seeking to have it changed to ‘correct’ information which would have been a relatively simple matter.
The applicant claims that his migration agent filled in the form and, in response to the NOICC, the migration agent seems to confirm that he did fill in the visa application form. However, the Tribunal considers that the migration agent was acting within the scope of the authority given to him by the applicant and that the incorrect information is, for that reason, taken to have been provided by him.
The applicant has provided the Tribunal with additional evidence that he was still working for Dave Batra in May 2016, at Kurryleaf in Minchinbury, when he lodged the visa application and he could simply have requested that the letter be reissued on Mini Batra Pty Ltd letterhead, and with the correct information relating to when he worked at both or either of the restaurants owned by Dave Batra during the relevant timeframe. Instead of doing this, the applicant provided the work reference containing the incorrect information, together with the visa application and Form 80, also containing incorrect information about when and where he worked part-time as a restaurant manager for seven months from October 2015 to May 2016.
The incorrect information and response by the applicant to the 2017 NOICC
The Department sent the applicant a s.107 notice and the Tribunal has found that the notice complied with statutory requirements, with reasons given earlier in this decision. The applicant’s migration agent, Mr Sanjiv Ahuja, responded to the s.107 notice, stating it was on the basis of information provided to him by the applicant. He disputed the non-compliance, essentially because of mistakes made by third parties and claimed, on that basis, the providing of the incorrect information was unintentional and an innocent mistake on his part. In summary, the submissions were these:
a.‘third party unintentional mistake’ (including by his migration agent and the HR person who it is claimed issued the 12 March 2016 work reference signed by Dave Batra);
b.The applicant thinks he ‘may have complied with s.101(b) by the unintentional mistakes in the answers provided on page 9 of the visa application and page 19 of the Form 80 Character Assessment form;
c.He was employed and paid by Gurpreet Batra Pty Ltd, the company that owned the Kandos restaurant. The director was Dave Batra who also owned Kurryleaf restaurant where the applicant also occasionally worked from October 2015 to May 2016. He worked part-time, for a total of 20 hours a week, across both restaurants from October 2015;
d.When the Kandos restaurant closed (in January 2016), he continued to work at Kurryleaf under the same management (Dave Batra) while he was looking for a new job;
e.The company name changed from Gurpreet Batra Pty Ltd to Mini Batra Pty Ltd and the applicant was not aware that his employment had changed from one company to another;
f.The applicant’s work reference provided by Mr Batra was mistakenly issued on the old Gurpreet Batra Pty Lt;
g.The employee who drafted the work experience for Mr Batra essentially used an old Gurpreet Batra Pty Ltd document for another employee and did not amend the dates, ‘from’ and ‘to’, or the name of the restaurant and no-one noticed the mistake, and it is claimed this was a ‘real genuine overseen mistake;’
h.The applicant did not notice anything was wrong with the information about his employment dates at the Kandos restaurant; and
i.The applicant requested that the Department accept his ‘deep repentance’ and forgive him ‘for a small third party un-intentional mistake’. (As I do not accept the mistake was unintentional, irrelevant).
In the submissions provided in response to the NOICC in 2017, the applicant’s migration agent claimed that he had, in assisting the applicant with his visa application, mistakenly entered incorrect dates relating to the applicant’s employment at the Kandos restaurant, which indicated that the applicant was working there when the application was made, on 5 May 2016, rather than having worked there until January 2016 and then worked at Kurryleaf, both owned by Dave Batra. It seems likely, in the view of the Tribunal, that Mr Ahuja did so relying on the information in the 12 March 2016 work reference.
A letter of explanation written by Mr Batra, signed and dated 24 March 2016, was provided by the applicant. The explanation essentially accords with the explanation given by the applicant, that the dates were incorrect as to when he worked for Gurpreet Batra Pty Ltd at the Kandos restaurant, someone in HR used the wrong letterhead and no-one noticed the errors before the letter was sent out.
The applicant again confirmed this version of events in his oral evidence at the Tribunal hearing. He said that because he worked at the Kandos restaurant and Kurryleaf for Dave Batra, he thought they were under the same company name and that when he ceased working at the Kandos restaurant, but continued working at Kurryleaf, he was under the impression that he continued to work for the same company because he continued to work for Dave Batra. He gave evidence that providing the incorrect information relating to his employment from October 2015 to May 2016 was unintentional and a genuine mistake.
Additional documents and information provided to the Tribunal
The applicant commenced work as a bus driver for Hillsbus in 2018. Documents provided to the Tribunal, by the applicant, including PAYG statements and ATO notices include the following relating to the applicant’s work history from 2015 to 2019:
a.From 1 October 2015 to 15 January 2016, the applicant received gross payments from Gurpreet Batra Pty Ltd, authorised person Dave Batra
b.From 16 January 2016 to 30 June 2016, the applicant received gross payments from Mini Batra Pty Ltd, authorised person Dave Batra
c.From 1 July 2016 to 30 September 2016, the applicant received gross payments of $3,929 from Mini Batra Pty Ltd, authorised person Dave Batra
d.Individual tax returns for 2018 and 2019, Hillsbus company
e.Individual tax return for 2017, Gurpreet Batra Pty Ltd, Mini Batra Pty Ltd and Vir Pty Ltd
f.Individual tax return for 2016, Gurpreet Batra Pty Ltd and Mini Batra Pty Ltd
g.Employment contract between the applicant and Vir Pty Ltd dated 31 March 2016, unsigned
The applicant has given both written and oral evidence that it was not his intention to give incorrect information. The applicant submitted that he has not benefited from the incorrect information, which the Tribunal takes to mean the dates he worked as a part-time restaurant manager for Dave Batra between October 2015 and May 2016. He says this is because if he had provided the correct information about which company he was employed by, either Gurpreet Batra Pty Ltd or Mini Batra Pty Ltd, and at which of their restaurants he worked from October 2015 to May 2016, the relevant work experience would still have been gained during the same time period and in the same occupation. That is, it would still be work experience, as a restaurant manager, of around seven months part-time, for up to 40 hours a fortnight.

The applicant gave evidence that Mr Dave Batra was the director of both the Kandos restaurant and the Kurryleaf and said he did not know that his employment had been changed from Gurpreet Batra Pty Ltd to Mini Batra Pty Ltd. He said when he ceased working at the Kandos restaurant in around January 2016, he continued to work at the Kurryleaf at Macquarie Fields, but only at the Kurryleaf (not the Kandos restaurant) and that the letter from Mr Batra was mistakenly on the ‘old’ company letterhead. In addition, it is claimed that an employee simply used a form letter and only inserted the applicant’s name and did not amend the ‘to’ and ‘from’ dates and the restaurant name/s.
The information contained in the visa application lodged on 5 May 2016 and the Form 80 document that accompanied the visa application are consistent with what is in the 12 March 2016 work experience letter signed by Dave Batra; ‘This is to certify that Mr Gurpreet Singh Sidhu is currently working at Kandos Indian Tandoori Restaurant as Restaurant Manager since 01 October 2015 on part time basis.’ This is considered by the Tribunal also to be incorrect information, as is the declaration in the visa application that all information in it is correct.
The work reference dated 12 March 2016 on the letterhead of a deregistered company, Gurpreet Batra Pty Ltd, says clearly that the applicant works at the Kandos restaurant. Mr Batra writes by way of explanation as to the mistakes in the work reference, in his letter dated 24 March 2017, that the work reference (dated 12 March 2016) was provided ‘with all honest intention’ and that ‘unfortunately our HR department has prepared the letter without verifying the dates properly and mentioning the whole scenario’.
The Tribunal does not consider that the work reference can be interpreted to mean, as the applicant’s suggests, that he worked for Dave Batra at both the Kandos restaurant and Kurryleaf from October 2015 to May 2016. Nor does the Tribunal accept the explanation by Mr Batra to be a reasonable or plausible one.
On thorough and careful examination of the documents provided, it appears three people were key to the provision of the 12 March 2016 work reference for the applicant, signed by Mr Batra, in which he says that the applicant ‘is currently working at the Kandos Indian Tandoori Restaurant’; the applicant, Mr Batra and the person in the HR department who, it is claimed by the applicant and Mr Batra, used an old letterhead and did not check dates. The applicant provided with his visa application pay slips, from February to June 2016 issued by Mini Batra Pty Ltd and has also provided the Tribunal with additional financial information, including PAYG statements and ATO assessments.
The Tribunal does not accept as a plausible proposition that the HR department would not have known that in March 2016 the Kandos restaurant had closed, Gurpreet Batra Pty Ltd had been deregistered and that there was a new company, Mini Batra Pty Ltd of which Mr Batra was a director; that Mr Batra would not have noticed and been minded to amend the incorrect information in the letter before he signed it; or that the applicant, when he received the reference, would not likewise have read in the first line that Mr Batra had written that he (the applicant) was ‘currently working at’ the Kandos restaurant on 12 March 2016 and knew that he was not working there at that time, but was working at Kurryleaf for Mr Batra. The Tribunal does not accept as plausible that the applicant being unaware of the company changes would result in him understanding that he ‘currently’ worked ‘at’ the Kandos restaurant in March 2016, when it had closed two months earlier.
The Tribunal is satisfied that the applicant knew the Kandos restaurant had ceased trading in January 2016 and that he cannot have been unaware that he no longer worked there. The restaurant was closed permanently. The applicant said he lived in Sydney and would travel to Kandos to work at the Kandos restaurant, by train to Lithgow and then Mr Batra would pick him up and drive him the rest of the way. The trip is at least four hours and he had not been making the trip for two months when the work reference was obtained. It is not accepted by the Tribunal that the provision of incorrect information relating to when and where the applicant worked between October 2015 and May 2016 was an ‘innocent or unintentional mistake’, as the applicant submits.
Notwithstanding that the applicant submits his migration agent provided wrong answers in the visa application and the Tribunal accepts that he may not have known about the change to the company in early 2016 with Dave Batra still as a director, from Gurpreet Batra Pty Ltd to Mini Batra Pty Ltd, the information provided by the migration agent relating to the applicant’s work history was provided on behalf of the applicant, the applicant had authorised him to act on his behalf; it was incorrect and it was not corrected before the visa was granted.
The Tribunal has considered the applicant’s oral evidence, relevant information in both the Department and Tribunal files, including the applicant’s response to the 107 notice and additional documents and information provided to the Tribunal and, for the reasons given, finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has found 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 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. Briefly, they are:
The correct information
The applicant, in the visa application, the Form 80 and the work reference from Dave Batra, provided incorrect information about ‘where’ he worked from October 2015 to May 2016. He also declared in the visa application that all information was correct, which is also incorrect information.
The correct information is as follows:
a.In the online visa application lodged on 5 May 2016, at Department folio 18, that the applicant worked at:
i.Kandos Indian Tandoori Restaurant from October 2015 to January 2016 employed by Gurpreet Batra Pty Ltd as a part-time restaurant manager
ii.Kurryleaf (in Minchinbury) from January 2016 to ‘current’ (5 May 2016) employed by Mini Batra Pty Ltd as a part-time restaurant manager
and
iii.At Department folio 17, the answer ‘No’ to the declaration ‘The information provided in this form is complete, correct and up-to-date
b.In the Form 80 (signed by the applicant on 8 March 2015) that accompanied the visa application lodged online on 5 May 2016, at Department folio 14, the applicant worked at:
i.Kandos Indian Tandoori Restaurant from October 2015 to January 2016 employed by Gurpreet Batra Pty Ltd as a part-time restaurant manager
ii.Kurryleaf (in Minchinbury) from January 2016 to ‘current’ (5 May 2016) employed by Mini Batra Pty Ltd as a part-time restaurant manager
c.Relating to the work reference signed by Dave Batra on Gurpreet Batra Pty Ltd letterhead, dated 12 March 2016, that the applicant worked at:
i.Kandos Indian Tandoori Restaurant from October 2015 to January 2016 employed by Gurpreet Batra Pty Ltd as a part-time restaurant manager
ii.Kurryleaf (in Minchinbury) from January 2016 to ‘current’ (5 May 2016) employed by Mini Batra Pty Ltd as a part-time restaurant manager.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The applicant considers this issue to be a matter of great importance which he submits the Tribunal should give positive weight. Specifically, he submits that there would have been no difference to the outcome if he had provided the correct information, that is that his Subclass 457 visa would have been granted, because for seven months from October 2015 to May 2016 he worked as a part-time restaurant manager for Dave Batra. The applicant submits that if he had provided the correct information with his visa application, he would still have worked for seven months, as a part-time restaurant manager, for Dave Batra.
The Tribunal has found that the provision by the applicant of the incorrect information in and that accompanied his visa application was not a genuine or innocent error or mistake and reasons have been given for this earlier. He did not himself correct the incorrect information before the visa was granted and claims only have to become aware of the incorrect information as particularised in the s.107 notice when the Department informed him of it on 6 April 2017 in the Notice of Intention to Consider Cancellation under s.109 of the Act, some six or so months after the visa was granted.
The Tribunal does not accept that the applicant only became aware of the incorrect information in the visa application, Form 80 and Dave Batra’s work reference signed and dated 12 March 2016 when he was informed of this in the NOICC sent to him on 6 April 2017.
The Tribunal is satisfied that the decision to grant the visa was based partly on the incorrect information the applicant provided, relevantly a seven month period working as a part-time restaurant manager for Dave Batra. However, the Tribunal accepts that if the correct information had been provided, the information would contain a timeframe of the applicant’s relevant work experience that is the same as the timeframe included in the documents that contained the incorrect information.
The Tribunal gives significant weight to this consideration in the applicant’s favour.
The circumstances in which the non-compliance occurred
The Tribunal has carefully considered evidence relating to the circumstances in which the non-compliance occurred and is not satisfied that all three of the people said by the applicant to have who handled the 12 March 2016 work reference (the applicant, Mr Batra and the person in the HR department, if there was an HR department, which the Tribunal has doubts about), on the letterhead of a company that had been deregistered and wound up a month prior, with incorrect information indicating that the applicant ‘currently’ worked ‘at’ the Kandos restaurant would not have noticed that the letterhead was wrong and that the applicant had not worked ‘at’ the Kandos restaurant up to March 2016.
In any event, it is the applicant’s responsibility to ensure all information he provided with his visa application was correct.
The Tribunal does not accept that there was a genuine error or mistake and considers the more likely version of events would be that the applicant, and/or his migration agent, did notice and simply provided the information relating to where and when he worked from October 2015 to May 2016 to make it consistent with the work reference.
The Tribunal is not satisfied that any reasonable explanation has been provided as to why Mr Batra could not or should not have read and noticed the errors before he signed the letter and the same applies to the applicant. The Tribunal has formed the view that the applicant knew, or should have known, the information about where he worked for Dave Batra was incorrect, but included information in his visa application and Form 80, whether he or his migration agent entered the information, to be consistent with what was provided in the 12 March 2016 work reference.
The circumstances in which the non-compliance occurred are given no weight in the applicant’s favour.
The present circumstances of the visa holder
The applicant is married and holds a bridging visa relating to his visa cancellation while his matter is under review. He is currently working as a bus driver for CDC, Hillsbus. His wife, who is an Indian national, is currently residing offshore.
In the applicant’s response to the NOICC it was acknowledged by him, essentially, that due to his occupation of Restaurant Manager having been moved to the Short Term Skilled Occupation List, he no longer had a pathway to permanent residency as a Subclass 457 visa holder, in his circumstances. The applicant is employed as a bus driver, an occupation that the applicant gave evidence at the Tribunal hearing is not on any skilled occupation list. The applicant’s Subclass 457 visa would have ceased naturally in September 2020 with, it would appear, no clear pathway to apply for a permanent visa on the basis of his occupation or employment.
The applicant worked part-time as a restaurant manager from October 2015 and, from October 2016, worked for his approved sponsor, Vir Pty Ltd. In April 2017, in his response to the NOICC provided by his (then) migration agent, the applicant claimed that he ‘’just wants to complete his managerial experience and return to his country with a rich experience of handling business in a developed country’. It is acknowledged that the applicant, who says he did not complete graduation due to closure of the college he was studying at (AIPE), was hoping to gain this management experience working as a restaurant manager and that this did not go to plan and he now works as a bus driver.
The Tribunal gives limited weight in favour of the applicant in his present circumstances.
The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act
In response to the NOICC in 2017, the applicant provided a second letter (of explanation) from Dave Batra, dated 24 March 2017, on Mini Batra Pty Ltd letterhead, stating that the applicant had worked for him employed by both Gurpreet Batra Pty Ltd and Mini Batra Pty Ltd when they traded as the Kandos restaurant and Kurryleaf. There is no information, other than relating to the reason the applicant’s visa was cancelled, that indicates that the applicant has engaged in any behaviour of concern under Subdivision C or Division 3 of Part 2 of the Act.
In response to the NOICC and in oral evidence given at the hearing, the applicant continued to claim that the provision of all the incorrect information was as a result of an innocent or genuine mistake. He gave what the Tribunal considers to be implausible excuses as to why he provided the incorrect information, including seeking to blame third parties. In effect, on this basis, he has continued to provide incorrect information. He gave inconsistent information in response to the NOICC; the payslips the applicant provided for work done by him after January 2016 were issued by Mini Batra Pty Ltd and the work reference he provided includes that he was employed by Gurpreet Batra Pty Ltd during that time.
The Tribunal requested that the applicant provided PAYG payment summaries for the financial year ending 30 June 2016 and they were provided. There were two issued separately; by Gurpreet Batra Pty Ltd, for the period 1 October 2015 to 16 January 2016; and Mini Batra Pty Ltd, from 16 January 2016 to 30 June 2016. The information in them is inconsistent with the information provided with the visa application, where no mention was made of the applicant working for Mini Batra Pty Ltd.
For these reasons, the Tribunal gives no positive weight to the applicant’s subsequent behaviour.
Any other instances of non-compliance by the visa holder known to the Minister
Other than the non-compliance as described and particularised in s.107 notice, there is no information before the Tribunal that the applicant has been otherwise non-compliant with any of his visa conditions in Australia. Some weight is given in favour of the applicant.
The time that has elapsed since the non-compliance
The applicant provided the incorrect information in 2016, about four years ago. On the evidence, he appears to have been residing in Australia as a law abiding citizen, working and paying income tax while awaiting an outcome on the review of his visa cancellation. Given the timeframe, and other than in relation to the incorrect information and responses to the NOICC, on the basis that the applicant appears to have engagement in and ties to Australia, some limited weight is given to this in the applicant’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that indicates the applicant to have breached any laws since the non-compliance relating to his Subclass 457 visa that is the subject of this review. Some weight is given to this in favour of the applicant.
Any contribution made by the holder to the community
Since his visa was cancelled, the applicant made dedicated attempts to find meaningful paid employment. He has been successful, having gone through onerous police and working with vulnerable people checks, and obtaining the relevant driving licence, and has now been working for CDC Hillsbus for about two years. The Tribunal accepts, on the oral evidence, that he drives their buses in and around the Northmead area in Sydney, driving on school runs, Thursday special games days for school children, regular bus routes and charters.
The Tribunal gives the applicant’s present circumstances, where he has been working providing a useful service to children and others in the Australian community for the last two years, weight in his favour.
The Tribunal has also considered to the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal is satisfied that:
a.There is no-one in Australia whose visas would, or may, be cancelled under s.140 of the Act. The applicant has declared no children or members of his family unit to be living with him in Australia and the Tribunal accepts that his wife is currently residing in India and is satisfied that cancellation would not result in the applicant’s separation from any member or members of his family unit. No weight is given to this consideration in the applicant’s favour.
b.As a result of cancellation, the applicant will become unlawful and required to depart Australia and he may be affected by s.48 of the Act, meaning that if he wishes or is entitled to apply for another Australian visa he will, with limited exceptions, need to do so offshore. The Subclass 457 visa is a temporary visa and there is no offer or guarantee of additional temporary or permanent visas being granted when a Subclass 457 visa ceases. If the applicant did not voluntarily depart Australia, he may be detained due to his lack of holding a bridging visa, which does not relate directly to the cancellation. The Tribunal is satisfied that the applicant would not be subject to indefinite detention because he is an Indian citizen and, on that basis, it is reasonable to think he has a right to reside in India. No weight is given to the consideration in the applicant’s favour.
c.There has been no claim made or evidence provided to the Tribunal that suggests the applicant, if he was removed to India, would face persecution, death, torture, cruel, inhuman or degrading treatment or punishment. No weight is given to this consideration in the applicant’s favour.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Jennifer Cripps Watts
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.

[2020] AATA 722

13 March 2020

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