Wu (Migration)

[2022] AATA 4919

Wu (Migration) [2022] AATA 4919 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vivien Wengfang Wu

REPRESENTATIVE:  Ms Sarah Leora Frankel

CASE NUMBER:  2204962

HOME AFFAIRS REFERENCE(S):          BCC2021/2255072

MEMBER:Antonio Dronjic

DATE:5 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 05 December 2022 at 4:38pm

CATCHWORDS 
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa– applicant had not in fact performed the nominated position after her visa was granted – applicant had given incorrect answer – no requirement for Ms Wu to in fact perform the tasks of the position after grant of the visa– decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 107, 109, 360
Migration Regulations 1994, r 2.41, Schedule 2

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 applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act in relation to her previously granted Subclass 186 visa.

3. Section 107A of the Act provides that failure to comply with s.101(b) of the Act in connection with a previous visa application may be grounds for cancellation of a current visa. After considering the prescribed circumstances as set out in reg. 2.41 and the guidelines set out in Procedural Instruction General visa cancellation powers, the Delegate proceeded to cancel the applicant’s Resident Return (subclass 155) visa.

4. The applicant applied for review of the primary decision to this Tribunal on 4 April 2022. With the review application, the applicant submitted a copy of the primary decision record.

   Background

5. The background to this matter is as follows:

   ·The nomination application which nominated the applicant to work in the nominated occupation Marketing and Sales Manager lodged by Joondalup Golf Management (Aust) Pty Ltd (Joondalup) was approved on 10 July 2017;

   ·On 4 May 2016, the applicant was granted a Subclass 186 visa based on the nomination by Joondalup;

   ·On 2 March 2022, a Notice of Intention to Consider Cancellation (NOICC) was issued to Ms Wu under section 109 of the Migration Act 1958 (Cth) (Act) on the ground of non-compliance with section 101(b) of the Act in relation to her previous application for an Employer Nomination (Permanent) (subclass 186) (ENS) visa;

   ·On 1 April 2022, the Delegate cancelled the Resident Return (subclass 155) visa under s109 of the Act. The Delegate found that Ms Wu did not comply with section 101(b) of the Act when she answered ‘yes’ to a declaration that she agreed to take up her approved nominated position for at least two years following the grant of the ENS visa. The Delegate made this finding based on a finding that Ms Wu had not in fact performed the nominated position after her visa was granted.

6. On 4 May 2022, the applicant submitted:

   ·     A copy of her response to NOICC;

   ·     Employer’s organisational chart; and

   ·     Job description.

7. On 8 November 2022, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 6 December 2022.

8. On 30 November 2022, the applicant submitted:

   ·     The applicant’s Statutory Declaration dated 29 November 2022;

   ·     Statutory Declaration from Mr Peter Kwee dated 23 November 2022 and

   ·     Legal submissions prepared by the applicant’s representative dated 30 November 2022.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to section 360(2)(a) of the Act

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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.

12. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

13. 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) of the Act in relation to the applicant’s previous application for an Employer Nomination (Permanent) (subclass 186) (ENS) visa.

14. The s 107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised. The Tribunal is restricted to consideration of whether there was non-compliance in the manner particularised in the s 107 notice.[1]

    [1] SZEEM v MIMIA [2005] FMCA 27.

15. In the present review, it is particularised in the 107 notice that Ms Wu did not comply with s.101(b) of the Act when she answered ‘yes’ to a declaration that she agreed to take up her approved nominated position for at least two years following the grant of the Subclass 186 visa.

16. The Delegate made this finding based on a finding that Ms Wu had not in fact performed the nominated position after her visa was granted. The Tribunal accepts the applicant’s submissions that there was no requirement for Ms Wu to in fact perform the tasks of the position after grant of the visa and that the requirement was only that she agreed to take up the position for at least two years at the time of the visa application, which she did.

17. The Tribunal acknowledges the delegate’s concerns related to the applicant’s residential address in Australia, information obtained during the verification process of her employment in Australia, nature of relationship between the applicant and Mr Kwee and the undisputed fact that the applicant’s salary, including the superannuation she was paid between July 2016 and December 2019, was reimbursed in full in 2019 by a shareholder who was the same person that had also previously arranged the applicant’s employment and organised the nomination application.

18. The Tribunal considered answers provided by the applicant in the visa application form. Arguably, an incorrect answer was given at page 15 of the form where the applicant declared that her intended state of residence is Western Australia. However, the Tribunal cannot rely on the grounds that are not particularised in the s.107 notice.

19. It is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s 107(1)(a) in the s 107 notice.[2]

    [2] Saleem v MRT [2004] FCA 234. In Saleem, Allsop J found that by failing to answer the appropriate question called for by s 108(b), the Tribunal had not ‘appropriately directed itself to its task and has not answered the appropriate question, to the extent it can be answered, dictated by the terms of the notice under s 107(1)(a)’: at [59]–[63].

20. The Tribunal finds that Ms Wu did not give an incorrect answer to the declaration whether she agrees to take up the position for at least two years. Accordingly, there was no ground to cancel her Subclass 155 visa under s. 109(1) of the Act.

21. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    decision

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Antonio Dronjic
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    101Visa applications to be correct

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

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.