SINGH (Migration)

[2021] AATA 2863

SINGH (Migration) [2021] AATA 2863 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maninder Singh
Mrs Gurveen Kaur
Master Jayvee Singh Arora

CASE NUMBER:  2010599

HOME AFFAIRS REFERENCE(S):          BCC2018/1828576

MEMBER:Kira Raif

DATE:12 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision 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 12 July 2021 at 10:13am

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 – Skilled–Regional (Provisional) – incorrect answer in visa application – full-time occupation of Cook – claimed points for employment – concurrent extensive hours of employment in another occupation – bogus document – financial support to wider family – denial of employment in India – failure to declare taxable income – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 98, 101 – 105, 107, 109, 140, 359
Migration Regulations 1994, Schedule 2, cl 485.224; Schedule 8, Condition 8107; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 489 – Skilled – Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of India, born in April 1984. He was granted the Skilled – Regional Sponsored visa in Subclass 489 in November 2017. In May 2020 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 his response to the NOICC and his visa was cancelled in June 2020. The applicant seeks 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 the first named 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 22 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former colleague Mr Kumar. 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 affirmed.

   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.

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

7. 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 ss.101 and 103 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled – Regional Sponsored visa in Subclass 489 in August 2017 and specified his occupation as a cook.

9. Relevantly, cl.489.224 required the applicant to achieve a qualifying score and a score stated in the invitation to apply for the visa. The applicant claimed points for his employment and stated in the application that he worked as a cook at Albany Italian Bar and Bistro between December 2014 and June 2017. The applicant outlined his duties and responsibilities. The applicant also signed a declaration on the application form, confirming that he had read and understood the information in the application and that the information in the application was complete and correct in every detail.

10. The applicant also completed Form 80 in support of his application and at Part F of that form gave details of his employment, stating that from December 2014 to the date of the application he worked as a cook at Albany Italian Bar & Bistro.

11. The applicant included a number of documents with the application as evidence of his employment. These included payslips for the period from 28 December 2014 to April 2017 issued by Albany Italian Bar and Bistro, a work experience letter issued by that employer confirming the applicant’s employment as a cook for the above period, and group certificates for the 2015 and 2016 financial years. The applicant was granted the Skilled – Regional Sponsored Subclass 489 visa on 17 November 2017.

12. The primary decision record indicates that the Department of Transport and Main Roads advised the Department that the applicant received Driver Authorisation on 7 June 2011 to work as a taxi driver in Queensland and had maintained this authorisation since. Information was provided by Black and White Cabs Pty Ltd indicating that the applicant worked full-time as a taxi driver from December 2014 to April 2017 and that, on average, he worked in excess of what is considered full-time on a daily basis, which might suggest that it would not have been possible for the applicant to work as a cook.

13. In his response to the NOICC the applicant claims that the delegate’s reasoning is flawed and there is no objective evidence to reject the applicant’s employment as a cook. The applicant submits that he is familiar with the operations of the business and he provided the details of other employees. The applicant included evidence of his study and the Tribunal accepts that the applicant completed the study as stated. That fact does not, however, confirm the applicant’s claimed work experience in the relevant period and for the stated number of hours. The applicant also included evidence of his employment in 2010–2011 but that also does not reflect on his employment in the relevant period as claimed in the application.

14. In his submission to the Tribunal of 4 June 2021 the applicant states that he had not intended to give incorrect information and that his employment was to meet the financial needs of his family as his father was not able to support him. The applicant submits that due to the circumstances, he was compelled to work as a taxi driver. The applicant states that he worked as a taxi driver occasionally and as a cook on a full-time basis and he did not mention his employment as a taxi driver as it was not relevant to his claims. The applicant also suggests in his written submissions to the Tribunal that the information provided by Black and White Cabs in relation to his hours of employment may be inaccurate. The applicant repeated these claims in his oral evidence to the Tribunal.

15. The Tribunal acknowledges that the applicant provided a number of documents in support of his claimed employment as a cook, including payslips, an employment reference and group certificates. However, the Tribunal is of the view that if the applicant did not work as a cook but had an agreement with the employer for the provision of documents, such documents would be made available to him irrespective of the applicant’s employment or the nature of such employment. In such circumstances, the presented documents do not constitute probative evidence of the applicant’s employment as a cook. The same can be said of the applicant’s claimed knowledge of the restaurant and his familiarity with the other employees. The applicant could have acquired that information because he worked as a cook or to assist with the visa application process.

16. There is evidence before the Tribunal of the applicant’s employment as a taxi driver. On 17 May 2021 the Tribunal received information from Black and White Cabs, essentially indicating that each driver is issued with a BHTX Driver Authorisation approved by the Department of Transport and Main Roads and to log into the system, each driver must use that authorisation, as well as a 4-digit PIN. Black and White Cabs provided the Tribunal with the applicant’s log book showing the dates and times when he logged on and off on its system during the period of his claimed employment at Albany Italian Bar and Bistro. The Tribunal provided that information to the applicant in accordance with s.359A of the Act.

17. The applicant concedes in his submission of 4 June 2021 that he worked as a taxi driver but he claims he did so to supplement his full-time employment as a cook, explaining the need to provide financial support to his family. The Tribunal does not accept that evidence because if the records of Black and White Cabs are correct (and this issue is addressed more fully below), these show very long hours of employment by the applicant driving a taxi and it would have made it impossible for the applicant to work as a full-time cook at the same time. The primary decision record confirms that the applicant claims to have worked as a cook on a full-time basis. The Tribunal does not consider it possible or plausible that in addition to those long hours of driving taxis, the applicant could have continued to work as a cook on a full-time basis.

18. In oral evidence, the applicant told the Tribunal that he worked as a cook but when he lost his job, he obtained the taxi driver licence and started driving from around 2011 until about 2014. He was driving full-time during school break and less hours while he was studying. He found the job at the Bistro through Gumtree and started working full-time when he was granted the Subclass 457 visa. The applicant states that while working at the Bistro, he was driving taxis about 7–9 hours a week to help his family. The Tribunal notes that this evidence contradicts the records of Black and White Cabs.

19. The applicant’s evidence to the Tribunal is that his PIN may have been misused and that records from the cab company are unreliable. The applicant states that there is ‘something wrong’ with Black and White Cabs and he had found out that his driver authorisation and his PIN had been used by others. The applicant states that it is easy to access somebody’s PIN, as it is only 4 digits and his PIN could be accessed by others. The applicant states that he had spoken to the operator of Black and White Cabs and they refused to provide any information in writing. The applicant states that it is the operator who is responsible for the drivers and the company would not know the details. The applicant states that it is common for drivers to use other people’s PIN and his PIN had been used. The applicant suggested his friend Mr Kumar admitted to having used his PIN because he himself was on the Subclass 457 visa and could not drive.

20. The Tribunal has found the applicant’s evidence unpersuasive. First, it is not entirely clear to the Tribunal how any other person would have access to the applicant’s PIN without his involvement, as the PIN is his own unique number selected by the applicant himself. Secondly, the applicant suggests that Mr Kumar had his own visa restrictions and therefore used the applicant’s PIN but the applicant himself was on a Subclass 457 visa with the same visa restrictions, so the Tribunal does not accept the applicant was so careless as to give away his PIN to others or let others observe him, as this would have implications for his own visa.

21. Thirdly, the Tribunal has formed the view that Mr Kumar has not been truthful in his evidence. The Tribunal took oral evidence from Mr Kumar. Mr Kumar told the Tribunal he was a friend and a work colleague of the applicant between approximately 2015 and 2017 and they saw each other a few times a week. Mr Kumar told the Tribunal he would give the applicant one shift a week, maybe 2–5 hours. Mr Kumar said he was using the applicant’s PIN, without the applicant’s knowledge, between 2015 and 2017, every day. On 29 June 2021 (and again on 5 July 2021 and 9 July 2021) the Tribunal received statements from Mr Kumar repeating the same evidence. The Tribunal considers it significant that Mr Kumar told the Tribunal that he cannot recall the PIN because of the passage of time. (This was put to the applicant pursuant to s.359AA of the Act.) The Tribunal does not consider it plausible that Mr Kumar would not recall the PIN, even with the passage of time, if it was used on a daily basis for about two years, as it is now claimed. The Tribunal has formed the view that Mr Kumar’s evidence was untruthful and only given to assist his friend, the applicant, with the visa cancellation process. The Tribunal does not accept Mr Kumar’s evidence that he had been using the applicant’s PIN between 2015 and 2017.

22. The applicant suggested that the taxi company is aware of the fraud but would not provide the information. The Tribunal is mindful that the company did provide records to the Tribunal (which were the subject of the s.359A correspondence) and there is nothing to suggest that relevant information has been withheld, nor of any wrong-doing by the company. The Tribunal does not accept the applicant’s evidence that the company had deliberately withheld information that  was beneficial to him.

23. The Tribunal also has significant concerns about the applicant’s credibility which supports the Tribunal’s view that evidence from the taxi company should be preferred to the applicant’s.

24. First, the Tribunal considers it problematic that the applicant failed to refer to his employment as a taxi driver in Form 80. The applicant concedes in his evidence to the Tribunal that he did not refer to his employment as a taxi driver, stating that he did not believe it was relevant. The applicant confirms that he did work as a taxi driver before making the application for the visa. The Tribunal notes that Form 80 required the applicant to list all of his employment, not only such employment which he considered to be relevant. The applicant also told the Tribunal that he relied on the advice of an agent, but the Tribunal is mindful that the applicant had sufficient English to be able to read the form and understand what was required of him. In any case, the Tribunal is of the view that the applicant himself had the responsibility for ensuring the information on the forms was complete and correct.

25. The Tribunal is of the view that the applicant had deliberately withheld information about his employment as a taxi driver on Form 80 so as not to jeopardise his claimed employment as a cook. That is, the applicant considered that disclosing his employment as a taxi driver may lead to an investigation of that employment and a finding that he did not work as a cook on a full-time basis, as claimed. The Tribunal is of the view that the omission of employment as a taxi driver by the applicant on Form 80 is an indication that the applicant is willing to provide untruthful information in support of a visa application and this causes the Tribunal to find that the applicant is not a person of credibility.

26. Secondly, the applicant repeatedly told the Tribunal that he always worked 40 hours per week at the Bistro with no changes to the hours of his employment, even when he worked different shifts. The Tribunal notes, however, that his payslips show 38 hours a week during each pay period. When the Tribunal pointed out that discrepancy, the applicant stated that he was ‘confused’. Given the consistency of the applicant’s claimed employment (ie 38 hours each week for over two years with no variation) and the applicant’s ability to recall other information about his claimed employment as a cook, the Tribunal does not accept the applicant was confused about the hours of his employment. Further, the applicant could not state how much superannuation he was paid each pay period, despite telling the Tribunal that he had regularly received his payslips recording that information. In the Tribunal’s view, these matters also go to the applicant’s credibility and the truthfulness of his claimed employment as a cook.

27. Thirdly, the applicant told the Tribunal that his income from driving the taxi varied as he did not drive every week. He stated that he earned around $200 a shift and he was doing a shift about once a week or once a fortnight. The applicant told the Tribunal that he did not declare that income in his taxation records because he was helping his family overseas. The applicant’s evidence is that he was untruthful in his dealings with the Australian authorities (such as the ATO) by not declaring his income from taxi driving. The applicant appear to have been very selective in the information he chose to provide in his visa application (not declaring his employment as a taxi driver) and in his taxation records (not declaring his income from taxi driving). For that reason also, the Tribunal finds that the applicant is not a person of credibility.

28. The applicant also confirmed in his evidence to the Tribunal that he worked as a taxi driver while holding the Subclass 457 visa, even though he knew a condition of that visa did not allow him to carry out that work. The applicant explained to the Tribunal that he had to work due to family circumstances. The applicant appears to suggest that his family obligations or his personal circumstances were of greater import to him than his obligations under the Act. The applicant appears to believe that he would be justified in breaching the migration law to suit his or his family’s needs. That supports the Tribunal’s view that the applicant is willing to breach the law, and to be untruthful in his dealings with Immigration and other authorities to achieve an outcome that is more preferable for him.

29. The applicant told the Tribunal that he has always been honest and had admitted his employment as a taxi driver. The Tribunal is mindful that he has only done so in response to the NOICC when the Department already had the information, he had not volunteered that information at any time previously. The Tribunal does not accept that the applicant has been truthful in his dealings with Immigration.

30. Overall, the Tribunal has formed the view that the applicant has not been truthful in relation to his claimed employment. The Tribunal prefers the evidence from Black and White Cabs which shows that the applicant worked extensive hours as a taxi driver. The Tribunal has found the applicant’s evidence that another person or persons used his PIN unpersuasive and in particular, the Tribunal does not accept the evidence of Mr Kumar on that issue. The Tribunal is mindful that the applicant has an interest in declaring that he worked as a cook (as this employment contributed to the allocation points) and no interest in declaring his employment as a taxi driver (which was in breach of his Subclass 457 visa conditions and possibly contrary to the stated employment as a cook). The Tribunal has formed the view that the applicant had fabricated his evidence of employment as a cook to assist with the visa application and that he had in fact worked as a taxi driver, as described in the records of Black and White Cabs, to financially support his family. The Tribunal has formed the view that the applicant is not a person of credibility and the Tribunal prefers the evidence from Black and White Cabs to the applicant’s own evidence.

1. The applicant’s representative submits that the decision to cancel is based on nothing more than assumptions and the applicant has indicated that another person has used his PIN. The representative notes that Black and White Cabs confirm there is a possibility that another person was using the applicant’s PIN to drive the taxi. The Tribunal does not consider the evidence and conclusions reached above to be mere assumptions. While the Tribunal acknowledges there is a possibility of another person using the applicant’s PIN, the Tribunal does not consider this has happened in the present case.

2. The Tribunal finds that the applicant provided an incorrect answer on Form 80 by not declaring his employment as a taxi driver. The Tribunal finds that the applicant completed Form 80 in a way that an incorrect answer was given or provided. The Tribunal acknowledges the applicant’s evidence that he relied on the advice of the agent but the Tribunal notes that under s.98, the information is taken to have been provided by the applicant. The Tribunal finds that the applicant completed the form in a way that an incorrect answer had been given or provided.

3. The Tribunal further finds that the applicant had spent extensive hours working as a taxi driver and the Tribunal does not consider the applicant worked as a cook at Albany Italian Bar and Bistro on a full-time basis, as he claimed in his application form. For that reason also, the Tribunal finds that the applicant completed the application form in relation to his employment in a way that an incorrect answer had been given. The Tribunal finds that the applicant had not complied with s.101 of the Act.

4. As the Tribunal has formed the view that the applicant had not worked as a cook on a full-time basis, the Tribunal finds that the various documents which refer to his employment as a full-time cook (such as payslips and an employment reference) are bogus documents within the meaning of s.5(1)(b) because they are counterfeit. The Tribunal finds that the applicant had given, or provided to an officer, bogus documents. The Tribunal finds that the applicant had not complied with s.103 of the Act.

5. For these reasons, the Tribunal finds that there was non-compliance with ss.101 and 103 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

6. 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).

7. 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

8. The correct information is that the applicant was employed as a taxi driver between December 2014 and April 2017 and the Tribunal has formed the view that he did not work as a cook at Albany Italian Bar and Bistro on a full-time basis as he stated in his application. The correct information is also that the applicant was working as a taxi driver while he claimed to have been working as a cook.

   The content of the genuine document (if any)

9. The Tribunal has formed the view that the applicant did not work as a cook on a full-time basis. Genuine documents (including the employment reference and payslips) would not show that the applicant was employed as a cook on a full-time basis. The applicant told the Tribunal that he did not provide bogus documents and every document he submitted is genuine.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

10. Clause 489.224 required the applicant to achieve a particular score specified in the Gazette and in the invitation to apply for the visa. When making the application, the applicant relied on the points for his employment and thus, the applicant’s employment was crucial to his ability to achieve the pass mark and the points specified in the invitation and to meet the requirements of cl.489.224. The applicant states that he only relied on 5 points, that is, one year of work experience and not the full 10 points. However, the Tribunal finds (and the applicant concedes) that the applicant did rely on the points to gain the pass mark, whether it was 5 points or 10 points, so that the decision to grant the visa was based, in part, on the incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

11. The applicant claims that due to the death of his father, his family lost financial support and he was compelled to work as a taxi driver to support his family. The applicant explained to the Tribunal that his brother started using drugs and was selling things from the family home, so he had to support his mother and his brother’s family. In his declaration of 5 July 2021 the applicant also explains that he has been providing financial support to his family, including his mother and sister in law. The applicant states that he had work rights and always believed that as long as he had performed his nominated occupation, it would not be a problem doing other work. He states that it is common for taxi drivers to share their codes and that it is not possible to remember such details after years have passed. The applicant states that his actions were caused by compelling circumstances and he has a genuine intention to reside in Australia.

12. The Tribunal acknowledges various statements from the applicant’s family in India and accepts that the applicant has been providing financial support to his family and that he felt compelled to support his family overseas. However, the Tribunal is mindful that the issue here is not the applicant’s employment as a taxi driver, but whether he had provided incorrect answers and bogus documents in relation to his employment as a cook.

    The present circumstances of the visa holder

13. The applicant provided with his response to the NOICC evidence of having completed study in Australia and the Tribunal accepts that he has done so. The applicant also presented evidence of his past employment. In his submission to the Tribunal the applicant states that he has spent a significant number of years in Australia and has strong ties to this country and has made contributions through his employment and skills. He does not want to go back ‘empty-handed’. The applicant refers to the significant factor of his residential history, stating that he has lived in a regional area and is committed to contributing to that area. The Tribunal is prepared to accept that evidence, although the Tribunal is mindful that the visa in question is a temporary visa only and would not allow the applicant to remain in Australia permanently or even on a long-term basis. Thus, the applicant’s links to Australia and contribution to Australia must be viewed in light of the fact that the applicant may be expected to leave Australia or seek another visa upon the expiry of the skilled visa. The applicant told the Tribunal that he has planned his future in Australia and to make an application for a permanent visa but there were problems because of the cancellation of the temporary visa. The Tribunal accepts that if this visa is cancelled, the applicant may be ineligible to obtain the permanent visa he had applied for.

14. The applicant’s child was born in 2020 and is presently in Australia. He told the Tribunal that there has been limited work due to Covid, his wife works part-time while he works casually.

15. The primary decision record notes that the applicant has been living in Australia since 2009 holding Student visas and other visas and the Tribunal accepts that the applicant has been living in Australia for a lengthy period and may be settled in Australia. The applicant’s partner has made an application for a permanent Skilled visa and the applicant has been included in this application.

16. The applicant told the Tribunal that he is a good person and has done nothing wrong. These issues are addressed elsewhere.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

17. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

18. There are no other known instances of non-compliance by the applicant.

    The time that has elapsed since the non-compliance

19. The application for the Skilled – Regional Sponsored visa was made in August 2017 and close to four years have passed since the non-compliance. In the Tribunal’s view, that is not a significant period of time.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

20. There are no known breaches of the law and the applicant states that he has been a law-abiding citizen and has done nothing wrong.

    Any contribution made by the visa holder to the community

21. The applicant claims that he has been a victim of circumstances. He states that he has paid taxes and superannuation. The Tribunal accepts that the applicant has made that contribution. The applicant told the Tribunal that he helps people and has tried to be a good citizen, he attends the Sikh temple and makes contributions and he also contributes to the community, which he intends to do in the future. The Tribunal accepts that evidence.

22. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures 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.

    Whether there would be consequential cancellations under s.140

23. The visas held by the applicant’s wife and child would also be cancelled if the applicant’s visa is cancelled.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

24. The applicant presented evidence that his son was born in Australia in 2020. The Tribunal is of the view that the best interests of the child require the child to be cared for by both parents but the Tribunal does not consider that this can only occur in Australia. The applicant told the Tribunal that his son was born in Australia and they have planned a good future for him in Australia. The Tribunal is of the view that the child’s interests would be best served by remaining with the parents irrespective of the country of residence and the applicant has not satisfied the Tribunal that the child’s life in Australia, and his best interests, would be better than his life in any other country. The Tribunal has formed the view that the best interests of the applicant’s son would not be adversely affected by the cancellation of the visa because the child will retain the care and support of both parents irrespective of his country of residence.

25. The applicant states that he has to take care of his brother’s two daughters and if he is not in Australia, he cannot support their lifestyle. The applicant presented to the Tribunal a statement from his sister in law who confirms that her husband is a drug addict and has not been able to support the family and who states that it is the applicant who has been supporting her and the children. The Tribunal accepts that evidence and accepts that the applicant has provided financial support to his brother’s family, including the two children. The Tribunal is prepared to accept that the best interests of those children could be affected if they do not receive financial support from the applicant. However, the Tribunal is not satisfied that if the present visa is cancelled, the applicant’s ability to work in Australia would necessarily be affected.

26. The Tribunal is mindful that the visa in question is a temporary visa which does not permit the applicant to remain in Australia and to work continuously in Australia. The visa is a temporary visa which, upon its expiration, would not enable the applicant to remain in Australia and to work in Australia. The applicant’s evidence to the Tribunal is that his partner has made an application for a permanent visa and he is included in that application. That is, irrespective of the outcome of this review, the family will remain in Australia and await the outcome of the other application. The applicant is eligible to seek a bridging visa with work rights while he awaits the outcome of his application for the permanent visa. Thus, the Tribunal has formed the view that that the present cancellation will not necessarily affect the applicant’s ability to work in Australia and support his family in Australia and overseas and in these circumstances, the Tribunal has formed the view that the cancellation of the visa will not adversely affect the interests of any children.

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement or family unity obligations

27. The applicant told the Tribunal that they have nothing in India and they would have a hard life because of his earning capacity. The Tribunal does not accept that evidence as the applicant has not satisfied the Tribunal that he would be unable to find employment and earn a living in India, even if his income would be lower. Importantly, the cancellation of the present visa would not lead to the applicant’s departure from Australia before his application for the permanent visa is finally determined.

28. The applicant told the Tribunal that if he cannot support his brother’s family, his brother may turn against him and may harm his own family. The applicant states that his sister-in-law tried to commit suicide. The applicant submits that authorities in India will not do anything until something happens. Notably, the applicant does not suggest he would be denied protection for any reason, rather that the police would not intervene until something happens. The Tribunal considers the applicant’s claims of any future harm or risk of harm to be vague and unparticularised. Essentially, the applicant states that if he cannot earn sufficient funds to support his brother’s family, his brother may do some harm. In the Tribunal’s view, the applicant’s claims are nothing more than hypothetical assumptions. The Tribunal does not accept there is a real chance or a real risk of any harm to the applicant or his family.

29. The Tribunal is also mindful that the applicant is able to make an application for a protection visa in Australia, if he believes that he or his partner and child could experience any harm upon return to India. The Tribunal notes the reasoning of the Full Federal Court in WKMZ v MICMSMA [2021] FCAFC 55, at [151] which confirms that it is open for a decision maker to find that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not return a person in such circumstances and in the absence of evidence to the contrary. In this case, there is no evidence to indicate that Australia’s usual policy of not returning people to a country where they may face harm would not be followed.

30. For these reasons, the Tribunal has formed the view that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

31. The Tribunal has also considered whether the applicant may face harm of the nature not contemplated by the Refugee convention or complementary protection obligations. The Tribunal has formed the view that there is no real likelihood of any form of harm occurring.

32. The Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations.

33. The applicant’s partner’s and child’s visas would also be subject to cancellation and they may depart Australia with the applicant. His mother and brother and the brother’s family live overseas. The family unity principles would not be breached as a result of the cancellation.

34. The Tribunal finds that Australia’s international obligations would not be breached by the cancellation of the visa.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

35. If the applicant’s visa is cancelled, and if he is not granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia (although this is unlikely to happen before the application for the permanent visa is finally determined). The applicant can make applications for certain visas in Australia without Ministerial intervention but he would have limited opportunities to do so. The applicant can make applications for visas offshore and may be subject to an exclusion period in relation to some such applications. The cancellation of the temporary visa may affect the applicant’s eligibility for the permanent visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

36. In his response to the NOICC and evidence to the Tribunal the applicant states that he supports his family in India. He states that his father passed away in 2004 and his mother is a widow, while his brother is a drug addict and the applicant claims he supports his family in India. On 16 June 2021 the applicant provided to the Tribunal affidavits supporting these claims and he told the Tribunal he is also providing support to his brother’s two children. The Tribunal accepts that the applicant supports his family in India and that financial hardship would be caused to the applicant and his family if the visa is cancelled. However, as noted above, the Tribunal also recognises the fact that the visa in question is a temporary visa only and, according to the information in the primary decision record, it was due to expire in late 2021. The applicant’s evidence is that he planned to remain in Australia and had applied for a permanent visa, which was refused because of the present cancellation. The Tribunal accepts the applicant’s preference is to remain in Australia and that he intended to seek a permanent visa but there can be no guarantee that the applicant would be granted a permanent visa, even if the present visa is reinstated. There are multiple requirements for the grant of the permanent visa, including PIC 4020 (and there is evidence that the applicant provided false or misleading information about his employment on Form 80 by failing to declare the taxi work). The applicant cannot assume he would be permitted to remain in Australia permanently. The application for the permanent visa is being processed and all of these issues will be considered as part of that process, irrespective of the outcome of the present review. Until the applicant is granted the permanent visa, the Tribunal is of the view that the applicant cannot have an expectation of continuous or long-term employment in Australia to support his family and of long-term residence to settle in this country.

37. The applicant told the Tribunal that he has been out of India for many years and he would not be able to find a job to feed his entire family and support his brother’s family. The applicant states that there are no jobs in India and his income would not be sufficient to support everyone. The applicant has presented no evidence of having sought, and of having been denied employment and the Tribunal does not accept that the applicant would be unable to find gainful employment in India, even if his income would not be at the same level. The Tribunal acknowledges that the cancellation of the visa, which may lead to the applicant being required to leave Australia unless he is granted another visa, may mean loss of employment and loss of income for the applicant and that may also affect his ability to support his family. The Tribunal accepts that this may cause hardship to the applicant and the family. However, as noted above, the Tribunal is of the view that such factors must be considered in light of the fact that the visa in question is a temporary visa only. Effectively, until the applicant is granted the permanent visa, the Tribunal can only consider the present cancellation in light of the fact that it is a temporary visa only and does not allow the applicant to remain in Australia beyond the period of validity of that visa.

1. The primary decision record indicates that the applicant had been granted Temporary Work visas in Subclass 457 in December 2014 and November 2015 and these were based on the applicant’s employment as a cook. The applicant confirmed this in his evidence to the Tribunal. The visas were subject to condition 8107 which prohibit the visa holder from working in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. The applicant’s evidence is that he had been employed as a taxi driver while holding the Subclass 457 visa. In the Tribunal’s view, employment as a taxi driver is inconsistent with the occupation of a cook, in relation to which the Subclass 457 visas were granted. The Tribunal finds that the applicant did not comply with condition 8107 of his previously held Temporary Work visa.

2. The applicant refers in his response to the NOICC to other Tribunal decisions. The Tribunal considers such references unhelpful as the Tribunal must determine this case on its own facts, decide for itself what weight to give to the available evidence and to the discretionary considerations, if the breach is established. It is thus unhelpful to refer to what has been considered and decided in a different case with different factual circumstances.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had given incorrect answers in his Skilled visa application by referring to his full-time employment as a cook and by failing to disclose his employment as a taxi driver in the period before his application was made. The Tribunal has formed the view the applicant did not work as a cook on a full-time basis and he had not declared his taxi employment on the application Form 80. The Tribunal has found that the employment documents which refer to the applicant’s employment as a cook on a full-time basis were bogus documents because the applicant did not work as a cook on a full-time basis. The Tribunal has found that the applicant had not complied with ss. 101 and 103 of the Act and that there are grounds for cancelling his visa.

4. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled. In particular, this may lead to the applicant being unable to work in Australia (if he is not granted another visa and is required to leave Australia) and that would affect his ability to support himself and his family in India. The cancellation of the temporary visa would also affect the applicant’s ability to seek the permanent visa in Australia and limit further visa opportunities. These are significant considerations that weigh heavily against the cancellation. The Tribunal also acknowledges that the applicant has been living in Australia for a number of years, that he is settled in a regional area and intended to remain in Australia permanently, for which he has taken steps. The Tribunal accepts these matters also weigh against the cancellation.

5. The Tribunal has formed the view that the cancellation of the visa would not be in breach of Australia’s international obligations. The Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation because the applicant does not have a permanent visa but his application for such a visa is being processed and the applicant’s ability to remain in Australia and work in Australia is dependent on the grant of that visa. These factors also weigh somewhat against the cancellation.

6. Against these considerations, the Tribunal has considered the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based, in part but to a significant extent, on incorrect information and bogus documents. Essentially, the applicant relied on his employment as a full-time cook to obtain the pass mark and to be granted the visa. If the applicant did not gain the pass mark, his visa could not have been granted. That is, the decision to grant the visa was based on incorrect information and bogus documents relating to the applicant’s employment. The Tribunal also considers it significant that the applicant withheld information about his taxi work in the application. Disclosure of that information may have resulted in a more thorough assessment of the applicant’s claimed employment as a cook because the applicant claims to have done both jobs simultaneously. Again, the Tribunal finds that the decision to grant the visa was based on the non-disclosure of information and therefore on incorrect information.

7. As noted above, the Tribunal has formed the view that the cancellation must be considered in light of the fact that the visa in question is a temporary visa only and despite the applicant’s claims that he intends to settle in Australia, he does not have the visa to do so at present. The Tribunal considers that the hardship to which the applicant refers and his unwillingness to return to India must be viewed in light of the fact that the applicant has no right to remain in Australia beyond the period of validity of his temporary visa, even if it was reinstated. While the applicant may be granted a permanent visa, he may not, so consideration can only be given to the visa that the applicant actually holds and that visa was due to expire later in 2021.

8. The Tribunal also gives weight to the fact that the applicant had previously breached a condition of his Subclass 457 visa by working as a taxi driver and failed to declare his taxable income, in breach of Australian laws. The Tribunal has formed the view that the applicant has placed his own interests and those of his family above his legal obligations.

9. In the circumstances of this case, the Tribunal acknowledges that there are strong reasons against the cancellation but has decided to place greater weight on the fact that the decision to grant the visa was based on incorrect information and that the breach was deliberate.

10. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 489 – Skilled – Regional (Provisional) visa.

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

    Kira Raif
    Senior Member