Ying (Migration)

[2022] AATA 5148

Ying (Migration) [2022] AATA 5148 (17 November 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jingchang Ying

REPRESENTATIVE:  Mr Bo Li (MARN: 0853061)

CASE NUMBER:  2209205

HOME AFFAIRS REFERENCE(S):           BCC2020/2761506

MEMBER:  SM Michael Cooke

DATE:  17 November 2022

PLACE OF DECISION:  Sydney

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 17 November 2022 at 2:22pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – location of employment – information submitted by the Regional Skilled Migration Scheme (RSMS) nominator – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 98, 101, 107, 107A, 109

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).

1. The delegate cancelled the visa on the basis that the applicant breached s.101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

1. The applicant was represented in relation to the review.

1. 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

1. 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.

1. 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.

1. 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?

1. 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:

·Incorrect answers were given or provided in relation to a visa that Jingchang YING (the applicant) previously held, namely the Regional Skilled Migration Scheme (subclass 187) visa granted on 4 March 2016 as a dependant applicant.

·On 31 July 2015 the applicant was included in an application for a Regional Skilled Migration Scheme (subclass 187) visa as the spouse of Xinwei REN (born 11 February 1975). Under effect of section 98 of the Act, in a combined application, even if the primary applicant (Xinwei REN) filled in the application form on the visa holder’s behalf, any information on the form is taken to have been given by each applicant in respect of their own visa application.

·Since the grant of the applicant’s visa, information before the Department indicates that Xinwei REN (the applicant’s wife) did not commence work in her nominated occupation with her nominating employer within six months of the visa being granted.

·A statement provided by David FOSTER, co-owner of Fosjong Pty Ltd, informs that Xinwei REN never commenced work in the role of Customer Service Manager at Fosjong Pty Ltd. Information before the Department, provided by Xinwei REN in her incoming passenger cards and subsequent visa applications, informs that she has resided in the suburbs of Lindfeld and Roseville in New South Wales in the two years after the grant of her visa. The address of 4 Haig Street, ROSEVILLE, NSW, 2069 was provided as the intended address in all incoming passenger cards in 2018 and 2019 and was also the address the applicant and Xinwei REN have both provided as their residential address in their applications for Resident Return visas which were both granted on 1 December 2020.

·Based on this information, the delegate considered that the primary visa holder Ms Xinwei REN (the applicant’s spouse), did not commence employment in the nominated occupation specified in the nomination form and referenced in the application form. The delegate considered that incorrect information was provided to the Department in the approved RSMS nomination associated with the primary applicant’s application for the RSMS visa when it was stated that the primary visa holder’s work location post code was 2650, the specified location of employment was 170 Hammond Avenue, WAGGA WAGGA, NSW, 2650 and when it was answered Yes in acknowledgement of the declaration regarding the likelihood of visa cancellation if the visa holder does not commence work in the nominated position within six months or continue to work in the nomination position for at least two years. The delegate considered these answers to be incorrect for the purposes of s101(b) of the Migration Act 1958.

1. The applicant’s representative has opined in a submission that:

Fact

6. The information on the Notice of Intention to Consider Cancellation under s.109 of the Migration Act 1958 provides the following non-compliance evidence

“Based on this information, it appears that you have provided incorrect information to the department in your RSMS Nomination… Therefore, your Resident Return (subclass 155) is under consideration for visa cancellation”.

7.  The Nomination is not lodged by the applicant. The nomination is lodged by the sponsor Fosjong Pty Ltd.

Legislative requirements

“…S109(1) sets up in paragraph (a) an initial essential precondition before the Minister at first instance “may cancel the visa”. That is, the Minister must as a first step decide in terms of s.108(b) whether there was non-compliance by the visa holder in the way described in the notice” under s.107. The Minister has no power to cancel a visa under s.109 by reaching satisfaction that there was non-compliance in some other “way” or “way” which were not “described in the notice”. The discovery of other “way” of “describing” the non-compliance may not be used a basis for cancellation in procedure initiated by the s.107 notice.”

“… I consider that the Minister’s contention that the Tribunal can decide whether there has been a non-compliance with s.101 unfettered by s.108(b) should be rejected.” 2

“I consider that I am bound by the above opinions expressed by Allsop J upon which decided in Saleem, and also respectfully agree with them. They conclude that the Tribunal will not validly exercise its jurisdiction in a review of a s.109 cancellation decision unless it directs its findings at the particulars of non-compliance which were given in the initiating notice.’ 3

Discussion of legislative requirement

Following the reason that “… I consider that the Minister’s contention that the Tribunal can decide whether there has been a non-compliance with s.101 unfettered by s.108(b) should be rejected,’ 4

Tribunal can only decide whether there has been a non-compliance contained in S107 notice.

The findings there is incorrect information on the nomination where it is not part of Ms. Ren’s visa application cannot be the ground to find Ms. Ren has provided incorrect information to Department. Ms. Ren does not breach s101, simply because the information on the nomination form was not provided by Ms. Ren to the Department.

S101 requires visa applications to be correct. Department has no information on the initiating notice (NOICC) suggests that the incorrect answers in the nomination aregiven or provided in the visa application.

Therefore, if Tribunal directs its findings at particulars of non-compliance which were given in the initiating notice, it will find the incorrect information is not provided by the visa applicant in her visa application.

1  SZEEM v Minister for Immigration (2005) 27 FMCA 19.

2  Ibid 25.

3  Ibid 32.

4  Ibid 25.

Conclusion

As Tribunal cannot possibly find that the nomination application is from the visa applicant, the incorrect information in the RSMS nomination which given in the initiating notice cannot be the ground for S109 cancellation. “The Tribunal’s only power in relation to a decision made without substantive power was to set aside that decision (c.f. Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 176)”

1. A clarifying submission was issued by the applicant’s family representative as follows: Fact

   1.  information on the nomination form

The information on the Notice of Intention to Consider Cancellation under 109 of the Migration Act 1958 provides the following non-compliance evidence

“Based on this information, it appears that you have provided incorrect information to the department in your RSMS Nomination… Therefore, your Resident Return (subclass 155) is under consideration for visa cancellation”

The Nomination is not lodged by the applicant. The nomination is lodged by the sponsor Fosjong Pty Ltd.

2.  information on the incoming passenger card. The address is an intended address at the time of client fill the incoming passenger card. It is not the address that requires the client to live in fact after entering Australia.

Conclusion on non-compliance

1. The Tribunal is not satisfied on the evidence before it that the primary applicant (Xinwe REN AAT 2111484) provided incorrect information to the Department in her visa application nor did the applicant - vicariously - as her dependent.

1. The approved RSMS nomination which stated that her work location was 2650 and her specified location of employment was 170 Hammond Avenue, WAGGA WAGGA, NSW, 2650 was information submitted by the nominator (Fosjoy).

1. The Tribunal is also aware that it was the nominator and not the primary applicant/visa holder (REN) who answered ‘Yes’ in the RSMS nomination acknowledgement of the declaration regarding the likelihood of visa cancellation ‘if the visa holder does not commence work in the nominated position within six months or continue to work in the nomination position for at least two years’. The Tribunal finds these answers were presented by the nominator in the approved RSMS nomination. They were not presented by the primary applicant in her subclass 187 visa application.

1. The Tribunal has revisited the case (AAT 2111484 which concerns the cancellation of a subclass 155 Resident Return visa) and agrees with the synopsis of the primary applicant’s representative.

1. It finds that there is no evidence the primary applicant provided incorrect information in her application for the initial subclass 187 visa. The Tribunal finds that the RSMS nomination information given in the initiating notice cannot be the ground for a s.109 cancellation.

1. 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.

DECISION

1. 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.

Michael Cooke Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5         Interpretation

(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.

97       Interpretation

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).

98       Completion 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.

99       Information 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.

100    Incorrect 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.

101    Visa 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.

107    Notice 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.

108    Decision 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.

109    Cancellation 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.