THANDI (Migration)

THANDI (Migration) [2017] AATA 451 (24 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Vikramjit Singh Thandi
Mrs Sonia Alias Simran Thandi
Miss Seerat Thandi
CASE NUMBER:  1614184
DIBP REFERENCE(S):  BCC2015/993134
MEMBER:Alison Mercer
DATE:24 March 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 489 - Skilled - Regional (Provisional) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 24 March 2017 at 4:38pm

CATCHWORDS
Migration – Cancellation – Skilled-Regional (Provisional) visa – Subclass 489 – Incorrect answer in application – English competency – Applicant unaware of test cancellation at time of visa grant
LEGISLATION
Migration Act 1958, ss 101(b), 107, 109(1), 140(1)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s subclass 489 - Skilled - Regional (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act). The subclass 489 visa application was made on 13 December 2014, and it was granted on 12 February 2015.
The delegate cancelled the visa on 31 August 2016 on the basis that the first named applicant (the applicant) breached s.101(b) of the Act by giving an incorrect answer in his subclass 489 visa application. The visas of the applicant’s wife and daughter (the second and third named applicants) were cancelled automatically as a result of the decision of the delegate to cancel the applicant’s visa.
The Tribunal received a review application from the applicants on 8 September 2016, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Vikram Singh, as their representative and authorised recipient for correspondence.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The following is a chronology of the significant events relating to this case, based on the material in the Department’s file and electronic records:
·18 October 2014 – the applicant sits a TOEFL iBT test in India and achieves scores required to be assessed as 'competent';
·13 December 2014 – the applicant applies for subclass 489 visa and states he has competent English on the basis of the above test. He includes his family unit members in his application;
·12 February 2015 – the applicant and his family unit members are granted subclass 489 visas valid till 12 February 2019;
·4 March 2015 - TOEFL administrators advise the applicant by letter that his test results have been cancelled effective as of 18 October 2014 as the Educational Testing Service (ETS) determined the test on that date was not administered in accordance with ETS policies and standards. The letter states in part that 'our concerns are based on a substantial agreement between your answers on one or both scored sections of the Reading or Listening section of the test and those of other test takers;'
·13 March 2015 – the applicant enters Australia as holder of a subclass 489 visa;
·3 June 2016 – Notice of Intention to Consider Cancellation (NOICC) issued to the applicant by the Department on basis that an officer of the Department considers that the applicant did not comply with s.101(b) of the Act as he gave an incorrect answer by stating in his subclass 489 visa application made on 13 December 2014 that he had competent English based on his 18 October 2014 TOEFL iBT test, and his subclass 489 visa is therefore subject to cancellation pursuant to s.109 of the Act;
·21June 2016 – the applicant provides a response stating that his results were valid at the time of his application for the subclass 489 visa, and that the TOEFL administrators denied him natural justice by not raising any issues with him before cancelling his results; and
·31 August 2016 – the Department cancels the review applicant's subclass 489 visa pursuant to s.109 on basis that he gave incorrect information about TOEFL in his subclass 489 visa application (noting that he was notified by TOEFL of cancellation of test results on 4 March 2015, before he entered Australia on 13 March 2015).
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. The Tribunal is satisfied in this case that the notice issued by the Department was valid.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects:
Particulars of possible non-compliance
I consider that there has been non-compliance with the following section of the Migration Act 1958:
Section 101 - Visa applications to be correct
101 An non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
By operation of s.99 of the Act, 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 s.100, paragraphs s.101(b) and 102(b) and ss. 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.
Evidence of alleged non-compliance:
On 13 December 2014, you lodged an application for a class SP subclass 489 Skilled – Regional visa via the Department’s… online lodgement facility. As part of this application you completed an ‘Application for Points Based Skilled Migration Visa.’ On page 12 of the electronic application form under the heading ‘Language’ you provided the following information (in italics):
Language ability
Has the applicant undertaken an English language test within the last 38 months?
Yes
English test details
Give details of the most recent English test
Name of test: TOEFL iBT
Date of test: 18 October 2014
Test reference number: 0000000022919360
Country where test was undertaken: INDIA
Language ability: Competent
Based on this information and meeting all relevant criteria you were granted the Skilled – Regional visa on 12 February 2015.
On 28 March 2015, the DIBP was advised that as a result of a subsequent investigation by Educational Testing Services (ETS) your 18 October 2014 TOEFL scores have now been cancelled by the ETS Office of Testing Integrity.
It appears that you have provided incorrect information at page 12 of the electronic application form, under the heading ‘Language.’ Consequently it appears that you have not complied with s.101(b) of the Act as you have provided incorrect answers to this question. If you have failed to fill in an application form in such a way that no incorrect answers are given or provided your visa may be cancelled.
…
The Tribunal is confined to considering the breach in the terms set out in the NOICC. The Tribunal considers that the applicant did not know that his TOEFL results had been cancelled at the time that he applied for the subclass 489 visa, nor at time it was granted. It appears he did, however, come to know of it after the date of his offshore visa grant on 12 February 2015 and before travelling to Australia on 13 March 2015 (given the TOEFL cancellation letter was sent to him on 4 March 2015 and he does not appear to be denying he received it).
Accordingly, the Tribunal finds that the applicant’s TOEFL result was not incorrect information when given by the applicant in is online application on 13 December 2014 as the test result had yet to be cancelled.
The Tribunal acknowledges that s.104(1) of the Act imposes a duty on an applicant to advise the Department as soon as possible if his or her circumstances change so that an answer in an application form is incorrect in the new circumstances, and that s.104(3) states that this applies to offshore applicants if the change in circumstances occurs after the time of application for the visa but before the applicant is immigration cleared (as appears to be the case here). However, the NOICC cited above does not specify that RA breached s.104, only s.101(b).
It also appears from the cancellation decision by the delegate that she may have formed the view that the applicant breached s.101(b) because the cancellation of his TOEFL results arose in circumstances where he was suspected of cheating, and he would have subjectively known that he had done so and so his ‘competent’ results could not be correct. However, this is not clearly specified in the NOICC notice issued pursuant to s.107.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. It remains open to the Department to consider whether there are other grounds for cancellation of the applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s subclass 489 - Skilled - Regional (Provisional) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Alison Mercer
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.
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.

[2017] AATA 451

24 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice