Singh (Migration)

[2017] AATA 761

Singh (Migration) [2017] AATA 761 (9 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjinder Singh

CASE NUMBER:  1620336

DIBP REFERENCE(S):  BCC2016/1785222

MEMBER:Denise Connolly

DATE:9 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 09 May 2017 at 2:15pm

CATCHWORDS

Migration – Cancellation – Employer Nomination (Permanent) Visa – Subclass 186 (Employer Nomination Scheme) – Providing incorrect information – Sponsor claimed misrepresentation by migration agent – Bogus nomination document – Financial probity issues within employing association – Questions regarding intended permanent visa application – Unfair dismissal claims

LEGISLATION

Migration Act 1958, ss 5, 101 - 109

Migration Regulation 1994, Schedule 2 cl 186.233(1)(a), r 2.41, r 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

   Background

2. The applicant was granted a Subclass 186 visa on 14 October 2015, having been sponsored by the North Shore Sikh Association (the Association). On 2 November 2016, the Department sent to the applicant a notice of intention to consider cancellation under s.109 of the Act (the s.107 notice). The delegate noted that when lodging the visa application on 24 March 2015, the applicant provided a nomination Transaction Reference Number ‘EGO894A14Y’ (the TRN) which related to the nomination application submitted by the sponsor on 24 March 2015 in which the applicant was nominated to work in the position of Minister of Religion. The delegate noted that the applicant had answered ‘Yes’ to a declaration that the position to which the application related is a position nominated under r.5.19 of the Migration Regulations1994. The Department was satisfied that the applicant met, amongst other things, the criterion set out in cl.186.233(1)(a), that is the position to which the application related was the position nominated in an application for approval that sought to meet the requirements of r.5.19(4), including: that the employee will be employed on a full-time basis in the position for at least 2 years; and that there is no adverse information known to Immigration about the nominator or a person associated with the nominator. The delegate noted that on 25 February 2016 adverse information was provided to the Department. It is recorded that the Chairman of the Association now claims that in January 2015 the Association approved a visa extension request for the applicant, for a period of one year starting from January 2015, under the Temporary Work (Long Stay Activity) (Class GB) Religious Worker Stream Subclass 401 visa program. At the time of the application Mr Gursharan Singh, a registered migration agent, represented the applicant. It has been alleged Mr Singh asked the Association’s Chairman to sign papers to extend the temporary visa but instead the migration agent lodged a permanent resident application under the Subclass 186 visa Employer Nomination Scheme (ENS). The delegate recorded that the Chairman was unaware of this at the time but became aware in December 2015 and expelled Mr Gursharan Singh as a member and as the immigration representative for the Association. The Association then advised the Department about the migration agent’s actions. Also on 8 August 2016 the Association informed the Department that the applicant had ceased to work for the Association on 31 July 2016.

3. The delegate recorded that the applicant was not in fact sponsored in a full-time position for permanent residence under the ENS. She formed the view that, instead, he was employed for one year only by the Association as a religious worker. The delegate concluded that the applicant had provided incorrect information in his Subclass 186 ENS visa application and therefore he had not complied with s.101(b) of the Act.

4. The delegate also recorded that the Association had been misrepresented as they had not agreed to sponsor the applicant for permanent residence under the ENS. The delegate concluded that the ‘nomination document’ was obtained because of the false or misleading statement and is therefore a bogus document as defined in s.5 of the Act. The delegate found therefore that the applicant had not complied with s.103 of the Act which requires that bogus documents are not to be given. The delegate concluded that the applicant had not complied with ss.101(b) and 103 of the Act and therefore his visa may be cancelled under s.109 of the Act.

5. The applicant’s representative (Mr Nigel Dobbie) made submissions on 16 November 2016 arguing that the s.107 notice was invalid because, in this case, it was being used as a primary investigative tool. The representative noted that the delegate had taken as true the allegations that the sponsor was unaware that they had lodged a nomination for the position under the ENS. The representative noted that the applicant’s former migration agent was able to provide a contract of employment submitted with the application which had been signed by Mr Gill, the Association’s Chairman. The contract was for the applicant’s position, for a period of at least 2 years. The contract was later amended, after concerns were raised by the Department, in relation to the terms of employment. The representative asserts that this contradicts the claim that the Association only gave authority for the visa extension for a period of one year. It is asserted therefore that there was no reasonable basis on which the delegate could form the relevant state of mind required as a precondition for a valid notice, and the notice therefore is invalid. The representative also noted that the applicant was not approached to provide information relating to the allegation. He cited case law cautioning against the use of notices as investigative tools. The representative referred to material demonstrating that Mr Gill, the Chairman of the Association, was aware that the applicant was being nominated for a permanent visa under the ENS scheme; on 3 March 2015 instructions were given by the Association, signed by Mr Gill, to the migration agent Mr Singh to lodge an ENS nomination application for the applicant; payment was made by the Association for the work on the applications; the migration agent was later elected as VP of the Association; and the minutes referring to the applications have been approved and countersigned by numerous members of the Executive Committee and Board of Trustees.

6. Mr Gursharan Singh provided a written submission and stated that he requested that the Chairman and others get in order the Association’s accounts as a nomination had been refused for an applicant who Mr Singh had been contracted by the Association to represent in relation to another Subclass 186 visa application. Mr Singh also asserted that he had insisted on financial probity and transparency in the Association after an internal feud relating to receipt books. Mr Singh asserted that there has been an attack on his reputation by people in the Association and that it has been implied that he was involved in financial probity issues. He asserted he has conclusively shown that the employer nomination for the applicant (and another Subclass 186 visa holder) was approved by the Association, that the Association knew exactly what it was approving, that the Association took measures to ensure that the nominations were approved and that the Board and the Executive of the Association made the relevant authorisations and gave Mr Singh the authority to act in relation to the applications before, and after, he became a member of the Executive. It is asserted that the attacks on his character are associated with attempts he had made to improve financial probity in the Association and because he had formed an opinion that there had been fraudulent conduct and he informed the Executive and the Board of such. He asserted the applicant is a collateral casualty of an internal conflict in which serious allegations had been raised.

7. The representative provided a statement from Surjit Sahota, dated 17 November 2016, the Vice Chair of the Association’s Board of Trustees. She indicated that instructions were given to Mr Gursharan Singh to lodge a nomination application under the ENS for the applicant’s permanent visa application and that this issue was discussed from time to time at meetings. She is of the view the applicant was unfairly dismissed.

8. The delegate has copied some of the material from the representative’s submissions into her decision record but does not appear to have engaged with it as she does not explain why she gives it minimal weight. She cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act because he provided incorrect answers in his application with regards to his employment. She formed the view he was not employed by the Association as required by r.5.19(4), as he was only to be employed as a religious worker for one year. She also formed the view that in providing the TRN in his visa application, the applicant had provided a bogus document on the basis that the ‘nomination document’ was obtained because of a false and misleading statement, and is therefore a bogus document as defined by s.5 of the Act. She found therefore that the applicant had not complied with s.103 of the Act.

9. The applicant appeared before the Tribunal on 20 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gursharan Singh, the applicant’s former migration agent, and Mr Shingara Singh, a member of the Turramurra Sikh temple. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

10. 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

11. 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.

12. 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.

13. Prior to the hearing the representative provided to the Tribunal various supporting statements from members of the Turramurra Sikh temple. Mr Charanjeet Singh states that there was an announcement at some time at the end of 2015 regarding the permanent visa application for the applicant. Mr Singh asserts that the approval of the permanent visas for the applicant, and another person, were made known to him at some time towards the end of 2015 and it was common knowledge amongst the congregation. He asserts that gratitude had been expressed to the management committee who had assisted in obtaining the permanent visas. Mr Singh asserts that at no point during his social interactions with any of the committee members was there any dispute as to the permanent residence matter.

14. Mr Shingara Singh also provided a written submission and attended the hearing, giving evidence that the temple’s congregation was made aware by way of an announcement that the permanent visa application for the applicant had been approved, at some time in November or December 2015. Mr Singh asserts that, had there not been instructions for a permanent visa application, the President and Chairman would not have made the announcement.

15. Mr Amarjeet Bansal, a regular visitor to the Turramurra Temple, states in writing that he was told by the Chairman and President that an application for permanent residence had been made for the applicant. He also states he was aware of a subsequent rift among the Executive Committee and the Board of Trustees and as a result Mr Gursharan Singh was removed. He believes that this is a deliberate attempt to harm Mr Gursharan Singh’s reputation. He is of the view that the applicant’s employment was terminated because of the dispute between the Association and Mr Gursharan Singh.

16. At the hearing the applicant confirmed that he had met with the Chairman, Mr Gill in about February 2015 to discuss the permanent visa application. He indicated that there were other permanent visa applications on foot. After his visa was granted he continued to work for the Association until about March 2016. He believes Mr Gursharan Singh was elected to the Board at some time after the applicant was granted his permanent visa.

17. At the hearing the applicant’s representative made submissions as follows. The ENS application was made electronically on 11:20am on 24 March 2015 and the visa application was lodged about an hour later, at 12.33pm. At that stage the TRN refers to an electronic record which is generated by the ENS application. The representative asserts that the s.107 notice was merely used as a tool for fishing. The Tribunal discussed with the applicant and the representative the issue of whether the TRN was in fact a document. It also discussed the issue of whether there had been consideration of any response to the s.107 notice given by the applicant as required by section 108.

18. The applicant told the Tribunal that at the time the visa application was made he genuinely believed that he was to be employed on a full-time basis for at least 2 years. He claimed that he had been informed by the Association that he had to work for it for at least 2 years. He was already working there at the time. This preceded the conflict that broke out between various members of the Committee. He believes that some members then sought to find fault in his work so that they could terminate his employment.

19. The Tribunal also discussed with the applicant the prescribed circumstances to be taken into account, as set out in r.2.41.

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

20. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. The Tribunal has considered the representative’s submissions that the delegate used the s.107 notice merely as a tool for fishing. The Tribunal is not persuaded by this because when the applicant provided further evidence in relation to the allegations, the new evidence provided does not appear to have been taken into account by the delegate. Having considered the wording of the s.107 notice, the Tribunal is of the view the delegate was already persuaded by the assertions of the Association’s Chairman, that the association had been misled into believing that they were merely making a nomination application to extend the applicant’s temporary visa for another year. Having decided that the allegations were reliable and sustained, the delegate also made it clear that she believed that by providing the TRN in the visa application the applicant had provided a bogus document because the nomination document was based on a false or misleading statement. The Tribunal is also of the view that the delegate had reached the relevant state of mind and considered that the applicant had not complied with sections 101 and 103. This conclusion is supported by her assessment of the information provided in response to the notice, where it appears that the delegate has not engaged with information which could be said to cast doubt on the Association’s allegations. While the Tribunal does not necessarily agree with the delegate’s conclusions in relation to those allegations, or her consideration of the applicant’s response, the Tribunal is satisfied that the delegate provided particulars of the possible non-compliance and that she reached the relevant state of mind for the notice to be valid.

21. The Tribunal is of the view that the information in the s.107 notice is sufficient to inform the applicant of the basis on which cancellation was being considered by the delegate, so that he had an opportunity to respond to possible non-compliance. The Tribunal is satisfied the delegate had reached the relevant state of mind and that the NOICC included particulars of possible non-compliance, as she saw it. The applicant was invited to provide a written response to the notice, which he did. The notice set out the consequences if the delegate found there had been non-compliance and the process for deciding whether to cancel the visa.

22. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

23. The other issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and s.103 in the following respects: the applicant had not complied with s.101(b) of the Act because, by indicating the position to which the application related was a position nominated under r.5.19 (that is, employment on a full-time basis for at least 2 years), he provided incorrect answers in his application with regards to his employment; and the applicant had provided a bogus document when he provided the TRN for the nomination application because the document was obtained because of a false and misleading statement, and is therefore a bogus document as defined by s.5 of the Act.

24. The Tribunal has first considered whether there has been non-compliance with s.101(b). In doing so it has taken into account all of the evidence, including the Association’s allegations made in February 2016, the witness statements, including from the Association’s Vice Chair, refuting the allegation that the Association had been tricked by Mr Gursharan Singh into lodging an ENS nomination application, when they thought they were merely sponsoring the applicant for another year as the holder of a temporary visa. It takes into account the evidence provided reflecting conflict between Mr Gursharan Singh and committee members regarding financial concerns. It is somewhat difficult for the Tribunal to know for certain that the Association was definitely aware that an ENS nomination application had been lodged. However the Tribunal gives weight to the statements from temple members and the Association’s Vice Chair, that announcements were made confirming the grant of permanent visas to the applicant, and another person, and that this was considered to be a cause for celebration within the temple congregation. It takes into account the document signed by Mr Gill on 3 March 2015, approving the work for an ENS nomination application for the applicant. The signature on that document appears to be the same as Mr Gill’s signature on other documents provided to the Department by the Association. The Tribunal is also of the view that the Association’s representative who signed documents relating to the ENS nomination application, as admitted in the allegation made to the Department in February 2016, had a responsibility to ensure that he was aware of the particulars of the application.

25. The Tribunal is of the view that the applicant, at the time of the visa application, believed he was being sponsored under the ENS for a permanent visa. The Tribunal is not satisfied he believed he was applying for an extension of his temporary Subclass 401 visa. In these circumstances the Tribunal is not satisfied he provided incorrect information in his Subclass 186 ENS visa application in the way particularised by the delegate in the s.107 notice. It is therefore not satisfied there has been non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

1. The Tribunal has considered whether, by providing the TRN in the visa application, the applicant gave a bogus document or caused a bogus document to be given, in non-compliance with s.103 of the Act. The Tribunal is not persuaded that, at the time of the ENS and visa applications, the Association genuinely believed it was merely sponsoring the applicant for another temporary visa. Having taken into account the written statements of the applicant’s witnesses, and the document signed by Mr Gill on 3 March 2015, the Tribunal is of the view the Association was aware that it had sponsored the applicant’s Subclass 186 visa under the ENS. Therefore it is not satisfied that, at the time the ENS nomination application was lodged and the TRN was generated by the Department’s electronic system, the nomination application contained false or misleading information. Having considered all of the evidence the Tribunal is of the view that, for reasons unknown, the Association subsequently changed its intention regarding the applicant’s ENS sponsorship.

2. In any case the Tribunal is not persuaded that, by providing the TRN generated by the nomination application, the applicant has provided a bogus document. The applicant did not provide the nomination application, or the Department’s nomination approval notification. He merely provided the TRN which links his visa application to a nomination application. The Tribunal is not satisfied, in the circumstances of this case, that this meets the definition of ‘bogus document’ as set out in s.5 of the Act. It notes the delegate describes the ‘nomination document’ as being bogus because it was obtained because of a false or misleading statement. Presumably the delegate is referring to the nomination application. However as indicated above the Tribunal is not persuaded that the sponsor was unaware that the application was for the nomination of a position under the ENS. The Tribunal therefore is not satisfied there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

3. For these reasons, the Tribunal is not satisfied there was non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

   Denise Connolly
   Member

   
   

   ATTACHMENT – Relevant Extracts from the Migration Act 1958:

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)    purports to have been, but was not, issued in respect of the person; or

   (b)    is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)    giving particulars of the possible non‑compliance; and

   (b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)    stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)    setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)     requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)    otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)    visas of a stated class; or

   (b)    visa holders in stated circumstances; or

   (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)    visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.