HOME【Classic Cases】ZhXX (Migration) [2019] AATA 3XX4
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: Mr BX ZhXX
CASE NUMBER: 18XXX05
DIBP REFERENCE(S): BCC2018/19XXX79
MEMBER: KaXXn SyXXn
DATE: 21 March 2019
PLACE OF DECISION: Melbourne
DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 21 March 2019 at 5:36pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – details of sponsoring employer – position details – consideration of discretion – nomination submitted without knowledge of sponsoring business – not an offer of a genuine position – grant of visa based on incorrect information – alleged fraudulent actions of migration agent – paid money to an agent to be returned disguised as wages – currently working full-time as an accountant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 99, 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 457.223; Schedule 8, Condition 8107
CASES
MIAC v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the MXXister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information in support of his Temporary Work (Skilled) (subclass 457) visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his sister, SXX (KXXi). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the MXXister 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 MXXister 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.
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?
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 section 101 – visa applications to be correct - in the following respects:
Section 101 – Visa applications to be correct
A non-citizen must fill in or complete his or her information form in such a way that:
...(b) no incorrect answers are given.
10. The breach of s.101(b) relates to a Temporary Work (Skilled)(subclass 457) visa which was granted on 25 May 2016.
By operation of section 99 of the Act:
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 MXXister, 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.
12. The section 107 notice is dated 18 July 2018 and relevantly set out:
Information held by the Department
On 12 November 2015, you submitted an online application for a Temporary Work (Skilled) (subclass 457) visa.
On the electronic visa application form Long-Stay Temporary Business Visa, you provided the following information:
On page 1 of form under heading 'Visa applicant details" you stated the following: Family name [the applicant’s family name]
Given names [the applicant’s first name]
Sex Male
Date of birth 17 December 1980
Relationship status Never married
On page 8 of the application form under the heading "Details of your sponsoring employer" you stated the following:
Business name The Trustee for RuXXell FaXXly Settlement
Business postal address XX-XX Myers Street
Suburb/Town Geelong
State or Territory Victoria
Postcode 32XX
Country Australia
On page 11 to the declaration "/ declared that: The information provided in this form is complete, correct and up-to-date." You answered "Yes"
On page 12 to the declaration "/ understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled” you answered “Yes”.
On 16 February 2016, the Department contacted you regarding your Temporary Work (Skilled) (subclass 457) visa application. The prospective employer, NeXX LeXXl Accountants Pty Ltd ATF RuXXell FaXXly Settlement, listed on your visa application did not have an approved nomination for you at the time. As a result your visa application was likely to be refused.
In response, on 10 March 2016, a Nomination application, TRN: EGOXXX4L1R was lodged via the online lodgement facility.
Within the electronic nomination application form 457 Nomination; TRN: EGOXXX4L1R, the following information was provided:
On page 1 of the application form under the heading "Identify related sponsorship" the following was provided:
Legal name NeXX LeXXl Accountants Pty Ltd ATF RuXXell FaXXly Settlement
On page 3 of the application form under the heading "Position details (1 of 3)” the following was provided:
Job title/Position Accountant
Occupation Accountant (General)
ANSCO Code 22XX11 —- Accountant (General) Street address where the person will be employed
Address XX-XX Myers Street
Suburb/Town Geelong
State/Territory Victoria
Postcode 32XX
Country Australia
On page 6 of the application form under the heading "Nominee current 457 visa details"
Family name [the applicant’s family name]
Given name [the applicant’s first name]
Sex Male
Date of Birth 17 December 1980
Your nomination application TRN: EGOXXX4L1R was approved by a departmental delegate on 27 May 2016. On the basis of all of the information provided, the delegate was satisfied that your nomination application met all relevant criteria, including Regulations 2.72(5) of the Migration Regulations 1994 ('the Regulations'), which stated:
r.2.72
(5) The MXXister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
Subsequently on the same day, a departmental delegate decided to grant your Temporary Work (Skilled) (subclass 457) visa. On the basis of all of the available information, the delegate was satisfied that your application met the criteria for grant of the visa, including Regulation 457.223 of the Regulations...,
On 27 February 2018 the Department received information from a representative from The Trustee For RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd that their company has never submitted a nomination application associated with you.
Furthermore, the company representative advised that the business was previously not aware that a Nomination application TRN: EGOXXX4L1R was lodged on their behalf to
nominate and employ you in the occupation as an Accountant (General) for The Trustee For RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd and they did not authorise for this nomination to occur.
The above information indicates that the position of Accountant (General), located at XX-XX Myers Street, Geelong, Victoria, 32XX, included in your nomination TRN: EGOXXX4L1R (and upon which you relied to satisfy the requirements for grant of your Temporary Work (Skilled) (subclass 457) visa), not a genuine offer of a position with the organisation. I note that it also appears the nomination was submitted without the knowledge of the proposed sponsoring business.
It appears that you provided incorrect information in support of your application for your Temporary Work (Skilled) (subclass 457) visa, and its related Nomination TRN: EGOXXX4L1R. It appears that you may not have met the key criteria for approval of your application for your Nomination TRN: EGOXXX4L1R, and for the grant of your Temporary Work (Skilled)(subclass 457) visa.
Particulars of the possible non-compliance with section 101(b) of the Migration Act:
On page 8 of the application form Long-Stay Temporary Business Visa under the heading "Details of your sponsoring employer" you stated the following:
Business name The Trustee for RuXXell FaXXly Settlement
Business postal address XX-XX Myers Street
Suburb/Town Geelong
State or Territory Victoria
Postcode 32XX
Country Australia
I consider this information to be incorrect, as information received by the Department, outlined above, demonstrates that the position for which you were nominated in Nomination TRN: EGOXXX4L1R for The Trustee For RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd, located at XX-XX Myers Street, Geelong, Victoria, 32XX, was submitted without the knowledge of the business and that this nomination was not an offer of a genuine position. Furthermore, a representative of the business has indicated that the company never nominated you for employment sponsorship.
On page 11 of the application form Long-Stay Temporary Business Visa to the declaration "I declared that: The information provided in this form is complete, correct and up-to-date." You answered "Yes". I consider this to be incorrect as the Department has received information that you were never nominated by The Trustee for RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd. As such you have provided incorrect information on page 8 regarding the details of your sponsoring employer.
On page 3 of the Nomination application; TRN: EGOXXX4L1R under the heading "Position details (1 of 3)" the following was provided:
Job title/Position Accountant
Occupation Accountant (General)
ANSCO Code 22XX11 — Accountant (General)
Street address where the person will be employed: Address XX-XX Myers Street
Suburb/Town Geelong
State/Territory Victoria
Postcode 32XX
Country Australia
I consider this information to be incorrect, as a representative from The Trustee For RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd, located at XX-XX Myers Street, Geelong, Victoria, 32XX has confirmed that they had never nominated you. As such it appears this was not a genuine offer for the above position.
On page 6 of the Nomination application; TRN: EGOXXX4L1R under the heading "Nominee current 457 visa details"
Family name [the applicant’s family name]
Given name [the applicant’s first name]
Sex Male
Date of Birth 17 December 1980
I consider this information to be incorrect, as the Department has confirmed that The Trustee for RuXXell FaXXly Settlement trading as NeXX LeXXl Accountants Pty Ltd was not aware this nomination had been lodged and did not have an intention to sponsor you for employment.
If you failed to comply with the requirements of sections 101(b) of the Migration Act your Temporary.
13. The applicant was invited to respond and address any matters he thought relevant within 14 calendar days of the Section 107 Notice. A response relevantly comprising: a statutory declaration from the applicant;1 a statutory declaration from the applicant’s sister2 and other documents all of which were provided to the Tribunal are relevantly set out below.3 The applicant also provided to the department (but not the Tribunal) a child’s drawing which the applicant’s sister refers to in her statutory declaration as illustrating that her daughter is very close to the applicant and “always includes [him] in her family portrait drawings”.
The delegate considered the response and documents provided and decided to cancel the applicant's Subclass 457 visa on the basis that he had provided incorrect information in his visa application.
On 4 March 2019 a submission was received that relevantly stated:
In or around late 2015, the applicant sought advice from a person presenting himself as a migration agent, who advised the applicant that he had the necessary contacts and was able to help him apply for a subclass 457 temporary work (skilled) visa.
On 12 November 2015, the migration agent, on behalf of the applicant, lodged an online application for a 457 visa.
1 Also provided to the Tribunal and relevantly set out at paragraph 16. 2 Also provided to the Tribunal and relevantly set out at paragraph 17. 3 And at paragraph 18.
On 16 February 2016, the DHA notified the applicant that the prospective employer, ‘NeXX LeXXl Accountants Pty Ltd ATF RuXXell FaXXly Settlement’ (NLA) did not have an approved nomination that listed the applicant as the nominee to be employed under the 457 visa.
On 10 March 2016, a nomination application (TRN: EGOXXX4L1R) was lodged which listed the applicant as the prospective nominee, to be employed under NLA as an Accountant (General) (ANSCO Code 22XX11).
On 27 May 2016, the nomination application (TRN: EGOXXX4L1R) was approved by a delegate of the minister.
On the same day of 27 May 2016, the applicant was granted the 457 visa.
On 27 February 2018, the Department received information from NLA suggesting that NLA was not aware, and did not authorize to nominate the applicant in his 457 visa application.
On 18 July 2018, the applicant received a NOICC letter from the Department. The applicant made submissions to the Department in response to the NOICC letter.
On 28 August 2018, the DHA cancelled the applicant’s visa. The applicant subsequently made an application to the Administrative Appeals Tribunal (AAT) for merits review of the DHA’s cancellation decision.
In its decision record dated 28 August 2018, the delegate for the DHA (the delegate) referred to section 101(b) of the Migration Act 1958 (The Act) and alleges that the applicant failed to comply with the requirements by providing incorrect answers in his 457 visa application. Specifically, the delegate alleged that the position in which the applicant was nominated was not genuine and not submitted by NLA, the prospective employer.
The delegate also referred to section 109 of the Act and stated the grounds for cancellation of the visa. Specifically, the delegate considered all matters listed under subsections (a) to (k) in the regulation 2.41 of the Migration Regulations 1994 (The Regulations).
We submit that the applicant acknowledges that the answers provided in his 457 visa application may be in non-compliance with section 101(b) of the Act, however that non-compliance was not deliberate and was solely the result of deceptive and fraudulent actions of his previous migration agent.
Nevertheless, the applicant accepts that his application did not comply with s.101 (b) of the Act, however we direct the member’s attention to s.107 (1) (ii) of the Act to consider our submissions for the applicant’s non-compliance and why his visa cancellation should be overturned.
We refer to the statutory declaration of the applicant dated 1 August 2018 and set out the following matters for your kind review.
It is imperative to note that the applicant‘s present circumstances are much different than what they were at the time of the delegate’s decision approximately 6 months ago. Accordingly, we submit that the AAT ought to consider and give proper weight to the applicant’s present circumstances when assessing compliance with section 101(b).
The DHA alleged in its decision record dated 28 August 2018 that departmental records indicated that no nomination was submitted by any sponsor to nominate the applicant for a temporary skilled visa, despite an undertaking by the Director of PioXXXr AlumXXXum, MXXi LXX to nominate and sponsor the applicant.
We note that following the department’s decision, an application to nominate and sponsor the applicant was made by PioXXXr AlumXXXum on 29 October 2018 and is currently being processed.
This development shows a clear willingness by an Australian company to sponsor the applicant and also demonstrates his continued intentions of working as an accountant and forging a career in Australia.
We further submit that the applicant applied for and was granted a condition variation to waive the no work condition 8101 attached to his Bridging Visa E. This has allowed him to pursue his passion to work as an accountant and not only support himself financially, but also provide benefit to his employer PioXXXr AlumXXXum and contribute to the Australian community at large through his expertise in accounting and as a tax paying individual.
We submit that the sponsorship application lodged by PioXXXr AlumXXXum, and the grant of the applicant’s BVE condition variation allowing him to work in the meantime as an accountant and making a contribution to the Australian community at large demonstrates the applicant’s willingness to practice in his qualified profession and to be a part of Australian society, and that great weight should be given during consideration of this matter.
Reg 2.41(a) Correct Information
We refer to the applicant’s statutory declaration, as well as that of his sister SXX (KXXi) and note that contrary to his belief, the applicant was not employed as an accountant at NLA from 27 May 2016 to 18 July 2018.
We note that the applicant’s non-compliance with section 101(b) was unintentional however the applicant concedes that his 457 visa application may have contained incorrect information. He is wholly willing to cooperate in providing the correct information and assisting in any investigations.
We submit that weight should be given to this consideration in favour of the applicant.
Reg 2.41(d) Circumstances in which the non-compliance occurred
We refer to the applicant’s statutory declaration, as well as that of his sister SXX (KXXi) and note that the contravention of section 101(b) of the Act was only due to the deceptive and fraudulent actions of the applicant’s previous migration agent.
We note that the applicant had reasons to trust the migration agent at the time as he was a friend of KXXi’s for some time and had always presented himself as a legitimate registered migration agent.
We note that the migration agent also introduced the applicant to ‘LyXXon’ whom he purported to be the director of NLA. Following an interview with ‘LyXXon’ and ‘Pauline’, a business partner of NLA, the applicant was offered what he believed a legitimate job opportunity.
We also note that although the actions of JaXXXe, ‘LyXXon’ and ‘NLA’ caused some suspicion for the applicant, especially when he was receiving wages prior to working, the applicant still trusted JaXXXe due to the family connection and his lack of understanding of Australian laws.
We further submit that the applicant always had a genuine intention to be in compliance with the Act, and had never intended to provide incorrect information during the application for his 457 visa. The applicant was not familiar with Australian laws regarding migration and therefore trusted the migration agent completely.
We submit that great weight should be given to this prescribed consideration in favour of the applicant
Reg 2.41(e) The present circumstances of the visa holder
The applicant has a current offer of sponsorship from PioXXXr AlumXXXum (PA) and a sponsorship application has been lodged by PA on his behalf.
We submit that the applicant has and always had a genuine intention to work as an accountant in a genuinely sponsored position.
We note that since the grant of condition variation for the applicant’s BVE, he has been working as an accountant and providing accounting services to the community.
We also note that a cancellation of the applicant’s visa would make him subject to s.48 of the Act, limiting his visa options in Australia and to the provisions of PIC 4013, which would prevent further certain visas being granted to him within three years.
We submit that some weight should be given to this consideration in favour of the applicant.
Reg 2.41(f) Subsequent behaviour of the visa holder
We note that the applicant concedes to the non-compliance of section 101(b) of the Act, and is wholly willing to cooperate with the Department by providing correct information and assisting in any investigation undertaken by the Department.
We submit that weight should be given to this consideration in favour of the applicant.
Reg 2.41(g) Any other instances of non-compliance by the visa holder
We note that the applicant has no other instances of non-compliance.
We submit that weight should be given to this consideration in favour of the applicant.
Reg 2.41(h) The time that has elapsed since the non-compliance
We note that it has been almost three years since the non-compliance occurred on 10 May 2016.
We submit that weight should be given to this consideration in favour of the applicant.
Reg 2.41(j) Any breaches of the law since the non-compliance
We note that the applicant has no criminal record and has not breached any laws since the non- compliance.
We submit that weight should be given to this consideration in favour of the applicant.
Reg 2.41(k) Any contribution made by the holder to the community
We note that the applicant has spent a significant amount of time onshore in Australia, and developed substantial ties to the community through his relationship with his sister KXXi and his niece. The applicant has formed a deep emotional bond with his niece and
was heavily involved in her upbringing. The cancellation of the applicant’s visa would have a dire consequence on not only the applicant but also the wellbeing of KXXi and her daughter.
We also note that the applicant’s work as an accountant at PioXXXr AlumXXXum following the waiver of his BVE condition demonstrates his commitment to providing accounting services to the community at large and contributing as a tax paying individual.
We submit that great weight should be given to this consideration in favour of the applicant.
Conclusion
The applicant never had any intention to provide incorrect information in his 457 visa application.
The applicant trusted and relied wholly upon his migration agent, and is a victim of the migration agent’s deceptive and fraudulent behaviour.
PioXXXr AlumXXXum has already begun its application process to nominate the applicant under a 482 visa.
After having his BVE conditions varied, the applicant has been able to work in his qualified profession as an accountant and contribute to the Australian community through his knowledge of accounting and as a taxpayer.
The prescribed considerations listed in 2.41 of the Regulations that weigh in favour of the applicant, substantially outweighs the extent of non-compliance of section 101(b) of the Act.
Having regard to our submissions above, we submit that when the applicant’s present circumstances are viewed and weighed as a whole, the AAT ought to make the correct finding to overturn the Department’s decision to cancel the applicant’s visa.
16. The applicant has provided the following relevant statements in a statutory declaration dated 1 August 2018:4
On 15 October 2010, I was granted a Student visa (subclass 573) ('573 visa').
On 2 November 2010, I first arrived in Australia to commence studying under my 573 visa.
On or around August 2015, I completed my studies and was actively trying to find employment in my field of study so that I could remain in Australia. I hold a Masters of Accounting from Victoria University and an Advanced Diploma of Management from the Australian National Institute of Business and Technology.
I spoke with my biological sister KXXi about my intention to obtain a visa to allow me to work and remain within Australia. Neither KXXi nor I knew about Australian laws or types of visas. Despite this, KXXi said she would help me by asking some of her friends and connections. I have always been very close to KXXi, and I trusted her wholeheartedly.
Interaction with JaXXXe LyXXon and NLA
In or around September 2015, KXXi found a person named Zhen Hua HU (‘JaXXXe’) who alleged to be a migration agent. KXXi told me that she had known JaXXXe for a while, and
4 Also provided to the department.
that I could trust JaXXXe to find employment for me under the sponsorship of a 457 visa employer.
After some consideration and convincing, I decided to trust JaXXXe. On 18 September 2015, I signed a contract with OX TraXXx ResXXXces Pty Ltd (ACN: 160160243) for their Migration Agent services to help me find employment under the 457 visa.
In or around late September 2015, JaXXXe, through KXXi, told me that there was a company that was willing to employ me as an Accountant under the 457 visa. The company was named 'NeXX LeXXl Accountants Pty Ltd ATF RuXXell FaXXly Settlement (‘NLA').
On 22 September 2015, JaXXXe, through KXXi, told me to attend an interview with the director of NLA named 'LyXXon RuXXell'. I attended the interview at 305/450 St Kilda Road Melbourne 3000 accompanied by JaXXXe and KXXi. I met with LyXXon and another person named 'Pauline' who alleged to be the business partner of NLA. The interview went smoothly and I was offered to commence a two week internship at NLA's 'Richmond’ facility.
Employment under NLA
During October 2015, I completed the two week internship under the supervision of LyXXon. My day to day duties were data entry of accounts, financial documents and filling for clients, preparation of BAS and tax returns for clients.
On 3 November 2015, JaXXXe, through KXXi, offered me an Accountant position at NLA. I was sent an employment contract with NLA to sign.
On 12 November 2015, KXXi told me that JaXXXe had lodged my 457 visa online.
During late 2015 to early 2016, I did not hear anything from Pauline, LyXXon, or any representative of NLA. JaXXXe, through KXXi, told me to be patient and that my application was still being processed by the Department.
Fraudulent actions of JaXXXe LyXXon and NLA
In or around May 2016, JaXXXe, through KXXi, told me that my visa had been partially processed, but said that I could not commence work yet as NLA had not finished the 457 sponsorship process. JaXXXe told me that instead of working, I should transfer a monthly sum of $5,018.00 to him, and he will arrange for NLA to deduct superannuation and tax from the sum and pay me the remainder as monthly wages.
I had no knowledge of the laws and did not want to risk breaching my visa conditions. I complied with JaXXXe's request and deposited monthly instalments of $5,018.00 to the account that he specified. Some of these deposit receipts are attached. After depositing
$5,018.00 each month, I would receive back $3,708.33 as 'wages'. Some of these payslips are attached.
I was very eager and always had a genuine intention to commence actual work. However, JaXXXe kept telling me that I could not work yet as my visa was still processing. He said that if I stopped the monthly deposits. NLA would terminate my employment and also remove me as a nominee under the 457 visa.
I did not want to have my visa cancelled, so I complied with his requests and continued depositing monthly instalments of $5018.00 for a total period of 19 months.
It was only in late January 2018 when KXXi and I called the Australian Taxation Office did I find out that NLA had In fact not been paying tax and superannuation on my behalf. Only then did I realise that JaXXXe and the people involved or purporting to be involved with NLA were all in it together to scam me.
In or around late January 2018, KXXi and I approached JaXXXe about this issue. He, along with all of the other contacts, started dodging our calls and ceased all communication with us.
Between 25 January and mid-February 2018, I made countless calls and text messages to LyXXon requesting an explanation about my visa and his/NLA's involvement in the matter. LyXXon evaded my calls and eventually ceased all communication with me. Some of the text messages during this period are attached.
Current circumstances
In or around April to May 2018, I started looking for a genuine employer that was willing to sponsor me under the 457 visa.
In May 2018, MXXi LXX ('MXXi'), a friend of KXXi's and an employee at 'PioXXXr AlumXXXum Pty Ltd (ACN 142XXX105)' ('PA'), approached me. MXXi told me that she would soon be a Director at PA, and would then be willing and able to employ me as an Accountant and sponsor me under the 457 visa.
On 1 July 2018, MXXi was appointed Director at PA. I understand that she is applying to be a Temporary Skill Shortage visa (subclass 482) ('482 visa') sponsor as the 457 visa had been recently abolished. She has drafted an employment contract for me and has told me that I can apply for a new 482 visa once her 482 sponsorship has been approved.
On 18 July 2018, I received correspondence from the Department requesting that I respond to the NOICC letter.
Conclusions
I always had a genuine Intention to work at NLA as an Accountant.
I wholly relied upon KXXi and JaXXXe as I had no experience or knowledge in the legal system.
The incorrect information provided to the Department was provided by JaXXXe purporting as my migration agent.
I was a victim to the deceptive and fraudulent behaviour of JaXXXe and his affiliates from NLA.
I accept responsibility for the incorrect information provided in my 457 visa application, but sincerely hope that the MXXister can consider the extenuating circumstances in deciding the outcome of my visa.
17. The Tribunal also received a copy of the statutory declaration of the applicant’ sister (KXXi) dated 1 August 2018 in which she relevantly asserts:
I am the biological sister of the [the applicant] ('PeXXr').
I am making the following statutory declaration in support of PeXXr's response to the Notice of Intention to Consider Cancellation ('NOICC’) letter he received from the Department of Home Affairs ('Department') on 18 July 2018.
I am a Permanent Resident. I have lived In Melbourne Victoria since December 2008.
I contributed substantially throughout the entirety of PeXXr's application for his Temporary Work (Skilled) subclass 457 visa ('457 visa').
In or around August 2015, I started helping PeXXr find out what visa he could apply for to remain in Australia as his student visa was about to expire In November 2015. Neither of us had any knowledge about Australian laws or types of visas.
In or around September 2015, my friend Zhen Hua HU ('JaXXXe') offered to help my brother PeXXr obtain a 457 visa. JaXXXe had been a personal friend of mine since around February 2015, and had always told me that he was a registered migration agent. I told JaXXXe about PeXXr's situation and was delighted when he offered to help PeXXr.
During September 2015, JaXXXe and I had lengthy discussions over telephone calls, text messages and even face to face Interactions with regards to how PeXXr can obtain a 457 visa.
JaXXXe proposed that he could help PeXXr get a 457 visa for the price of $97,000.00 AUD which would include preparing all of the necessary documents, legal fees and GST.
As neither PeXXr nor I had any knowledge or experience about Australian laws, we trusted JaXXXe both as a friend and in his capacity as a migration agent and agreed to his proposition.
On 18 September 2015, PeXXr, through JaXXXe, signed a contract with 'OX TraXXr ResXXXXes Pty Ltd (ACN: 180XXX243). A copy of this contract and its certified translation is attached.
In or around late September 2015, JaXXXe introduced PeXXr to a 457 sponsor company named 'NeXX LeXXl Accountants Pty Ltd ATF RuXXell FaXXly Settlement' ('NLA).
On 20 September 2015, JaXXXe told me via text message that the director for NLA is a person named 'LyXXon RuXXell', and set up an interview between LyXXon RuXXell and PeXXr on 22 September 2015 at the address 305/450 St Kilda Road Melbourne 3000. A copy of this text message conversation is attached.
On 22 September 2015, JaXXXe accompanied PeXXr and I to attend PeXXr’s interview with LyXXon RuXXell.
During October 2015, PeXXr was offered to complete a short Internship period at NLA. To the best of my knowledge, PeXXr attended NLA for a trial period of two weeks.
On 3 November 2015, JaXXXe told me that NLA have offered PeXXr a position as an Accountant. JaXXXe sent me a document titled 'Employment Contract NeXX LeXXl Accountants for PeXXr to sign. A copy this document is attached.
On 12 November 2015, JaXXXe told me that he had lodged PeXXr's 457 visa online.
During November 2015 mid 2016, JaXXXe maintained consistent communication with me through text messaging. He would update me on PeXXr's 457 visa application often, send me documents from the Department, and would request PeXXr to provide further details and evidence through me.
Some of the documents JaXXXe would send to me included a Work reference letter from NLA that was allegedly sent to the Department. A copy of this letter is attached.
In or around May 2016, JaXXXe told me that PeXXr's visa had been partially processed, but noted that PeXXr was not able to work yet as NLA's application to sponsor PeXXr had not yet been fully processed.
JaXXXe told me that PeXXr should transfer a monthly sum of $5,018.00 to him, so that he can arrange for NLA to deduct superannuation and tax from the amount and pay the remainder back to PeXXr as 'wages'. JaXXXe assured me that this was normal and legal. I trusted JaXXXe wholly as neither PeXXr nor I understood Australian law.
In or around late 2016, I was getting anxious about PeXXr's 457 visa application as it had already been around one year since JaXXXe told me that the application was lodged. JaXXXe assured me that the visa was being processed, and for PeXXr to wait patiently as processing times were lengthy.
During 2017 to early 2018, communication between JaXXXe and I decreased drastically, though JaXXXe still assured me that PeXXr's application was being processed by the Department. I trusted JaXXXe as a migration agent and also as a friend. JaXXXe had told me that long waiting times now would mean less waiting time later when PeXXr applies for a 186 visa, but I was getting very anxious.
In or around January 2018, PeXXr and I called the Australian Taxation Office. We were told that PeXXr had not been paying tax. I called JaXXXe regarding this and he hung up on me and ceased all contact. It was at this point when PeXXr and I realised that JaXXXe and the people purporting to be NLA were working together to deceive and commit fraud against us.
The ongoing deception and fraudulent actions of JaXXXe, whom I thought was a personal friend, has severely traumatised me. I am fully reliant on PeXXr for mental sanity.
While PeXXr was studying here in Australia, I gave birth to my daughter PXXg FXX CHXX (‘FeXXXia’). Over the past seven years, PeXXr and FeXXXia have developed deep affection for each other. PeXXr has taken FeXXXia out to local paths, birthday functions, shopping, and has become an unbreakable family member to all of us. FeXXXia loves art, and always Includes PeXXr in all of her family portrait drawings...
If PeXXr’s visa is cancelled and he is no longer able to reside in Australia, not only will my life be absolutely ruined, but my daughter will also lose an uncle that she cares for deeply.
I know for a fact that PeXXr always had a genuine intention to work under his 457 visa because I was Involved in the process from start to finish.
PeXXr is a very capable Accountant and I understand that he has already found an employer willing and able to sponsor him under a new temporary work visa.
I urge the MXXister to consider the fraudulent actions of JaXXXe and those purporting to be NLA in deciding PeXXr's fate.
18. The applicant also provided to the Tribunal the following documents:
A document titled ‘Agreement’ dated 18 September 2015 between ‘OX TraXXx ResXXXces Pty Ltd’ and the applicant setting out an agreed payment schedule for the grant of 457 and 186 visas.
A Contract of Employment dated 4 November 2015 between the applicant and NeXX LeXXl Accountants Pty Ltd trading as SpXXXer & HiXX in which the applicant is offered the position of Accountant for a salary of $55,000 exclusive of superannuation.
A handwritten document with bank payment details for PGB Consultancy.
Copies of 14 receipts for deposits of various amounts (mainly $5,018) made between 4 October 2016 and 9 August 2017. They are all noted as “cash deposit to 3rd party debit account”.
Copies of 11 “payslips” titled “Payslip Official Payroll Master” covering a non-continuous period from 30 June 2016 to 17 July 2017. All except one of these “payslips” records gross earnings of $4,583.33 and net payments of $3,708.33.
Copies of text messages between the applicant and ‘LyXXon RuXXell’ a director of NeXX LeXXl Accountants Pty Ltd dated between and 25 January and 18 February (year not recorded).
Copies of 6 messages about the applicant’s interview in September 2015 with LyXXon RuXXell and Pauline.
A letter addressed to the department from ‘SpXXXer & HiXX Accountants & Advisors’ which purports to be a reference for the applicant. It is undated but states the applicant was employed “from 28 September 2015 to current”.
A statutory declaration from Mimi Liu, Director of PioXXXr AlumXXXum Ply Ltd dated 1 August 2018 stating the company’s; intention to employ the applicant on a 482 visa, should it be granted.
A Contract of Employment dated 18 July 2018 between the applicant and PioXXXr AlumXXXum Ply Ltd offering the applicant the position of ‘Accountant and Administrator’ with effect from the grant of a 482 visa.
A copy of the department’s ‘Acknowledgment of a Sponsorship application received’ dated 29 October 2018.
19. In relation the consideration of the alleged issue of non-compliance a written submission provided to the Tribunal asserted that “the applicant acknowledges that the answers provided in his 457 visa application may be in non-compliance with section 101(b) of the Act” and that “ accepts that his application did not comply with s.101 (b) of the Act. However, when the Tribunal asked him about this during the hearing he said that after graduating he needed to look for a job and was introduced by a friend to the company and did a two week trial there. Asked specifically if he was sponsored by NeXX LeXXl Accountants Pty Ltd at the time of his 457 visa application he said yes, he had a nomination at that time. The Tribunal asked the applicant if he is disagreeing with the submissions provided on his behalf in which it was stated that he acknowledged the answers provided in his 457 application were not in compliance with section 101(b). He responded that he might not have fully understood what the incorrect information was. He said that at the time NeXX LeXXl Accountants5 provided a 457 visa for the job. At the time his immigration agent’s name was JaXXXe and he provided all of the information to the agent but he does not know if this agent and provided the correct information on his behalf. This information included his academic qualifications, his resume and his IELTS results. The Tribunal asked the applicant if he was resiling from the
5 Also referred to in written and oral evidence as NeXX LXXXl Accounting.
statements made in submissions on his behalf that acknowledged he had breached section 101(b). The applicant responded that he did not fully understand section 101(b) but he might have incorrectly described some of the information but he is not sure what. He said, at the end, he became aware that this company, The RuXXell FaXXly Settlement did not make him employed but his former migration agent told him that this person was the sponsor of his application.
Although the applicant’s evidence at the hearing was more equivocal than that provided in the submissions the Tribunal, after considering all of the information before it, and particularly relying upon the information provided by the applicant later in hearing (see paragraphs 28, 31 and 32) that he did not have a valid sponsorship at the time of his visa application and also on the information contained in both the NOICC and the primary decision that the employer had contacted the department on 27 February 2018 and advised that it had not sponsored the applicant and had no intention to employ him, the Tribunal is satisfied that the applicant provided an incorrect answer in his Temporary Work (Skilled) (subclass 457) visa application when he stated or caused to that his sponsoring employer was The Trustee for RuXXell Settlement (trading as NeXX LeXXl Accountants).
Conclusion on Non-compliance
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
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).
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. Briefly, they are:
The correct information
The Tribunal asked the applicant what the correct information was at the time he lodged his 457 visa application on 12 November 2015. He responded that the correct information is that he did provide correct information to JaXXXe, his former agent, and he signed an agreement and the material at the time presented to him was correct. Asked if acknowledged that he done anything wrong the applicant said “I might have also been wrong for some part of it because I should not have trusted JaXXXe fully and did not check everything thoroughly”. The applicant repeated that he had given JaXXXe the correct information including his resume qualifications and past experience.
The correct information is that The Trustee for RuXXell FaXXly Settlement was not, at the time the applicant lodged his 457 application on 12 November 2015, his sponsoring employer because this employer reported to the department that it never sponsored or nominated the applicant and it had no intention of employing him. The Tribunal considers this significant and that it weighs in favour of cancelling the visa.
The content of the genuine document (if any)
This is not a relevant consideration in this case.
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
One of the requirements for the grant of a Temporary Work (Skilled) (subclass 457) visa application is that the MXXister is satisfied that: the applicant’s intention to perform the occupation is genuine; and the position associated with the nominated occupation is genuine: cl.457.223(d). Based on the evidence before the Tribunal and on the claimed sponsor’s advice to the department that it did not sponsor the applicant and had no intention of employing him, the position associated with the nominated application was clearly not genuine. As the satisfaction of cl.457.223(d) is an essential criterion for the grant of 457 visa, the decision to grant the applicant a 457 visa was based at least partly on incorrect information.
Invited at the hearing to comment on the fact that the nomination was not genuine and that he was therefore granted a 457 visa on a false basis, the applicant said he agreed he was granted a 457 on the nomination of NeXX LeXXl Accountants and that he now understands that NeXX LeXXl Accountants did not submit a nomination for him
Had the delegate not been able to reach a level of satisfaction that the position associated with the nominated occupation was genuine; the applicant would not have been entitled to the grant of the visa. This significantly weighs against the applicant and in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The Tribunal invited the applicant to make any submissions in relation to the circumstances in which the non-compliance occurred.
The applicant said that at the time the agent JaXXXe kept informing him that the company would not agree to sponsor him and he had to keep paying money. Asked to clarify this, the applicant said the company, at the time, did not want him to work in Geelong. He therefore transferred money monthly to the agent JaXXXe. If he did not do this his visa would be cancelled. He said he transferred $90,000 over 19 months. The Tribunal noted that his sister, in her statutory declaration, stated that he had agreed to pay a fee of $97,000 to apply for the visa and asked if this was the same money that was being referred to. The applicant said no, he paid about $180,000 altogether. He got this money partly from his savings from
working in China and he also borrowed money from his parents and his sister. Although he paid money each month to JaXXXe in return he received $3,700 as wages.
The Tribunal asked the applicant how he could possibly believe he was getting wages when he was not working. He agreeing this was his mistake because at the time he was worried about his ability to maintain his visa. The applicant said he never worked at NeXX LeXXl Accountants Pty Ltd after his 457 was granted.
The Tribunal asked the applicant if he considered, at the time, that it was illegal, unethical or suspicious to be asked to pay money for a visa and a salary when he was not employed or working. The applicant responded that he regrets he has come to the path of getting this visa without a thorough consideration. In the beginning his original thought and intention was to it get a visa lawfully and to work lawfully. The applicant agreed it was unlawful to be paying money which would then be returned to him disguised as wages. He said it is unlawful. The Tribunal noted that because he entered into a scheme to pay money each month which would partly be returned to him, with a payslip, disguised as wages, when his clear evidence is that he was never employed by NeXX LeXXl Accountants, this behaviour raised serious concerns about his conduct. The Tribunal observes that the applicant appears to have entered willingly into the dishonesty when he agreed to start paying money to be returned to him disguised as wages.
During the hearing the Tribunal noted that in his and his sister’s statutory declarations it was stated that in January 2018 they phoned the tax office and found out, at that stage, that no taxation or superannuation was being paid in respect of him. The applicant agreed with this. Based on this information the Tribunal asked what actions he undertook between finding this out in January 2018 and receiving the NOICC in July 2018 and if he reported the situation to the department or another authority. The applicant responded that because of his lack of knowledge in immigration law and lack of ability to deal with it he firstly consulted a law firm (his current migration agents) and then, upon their advice, sought to engage another employer or nomination. Asked at what stage he reported this “scam” to the department the applicant said it was around July 2018. The Tribunal asked the applicant if he did in fact phone the department and advise that he did not have a sponsor for whom he was working and he was being scammed before he received the NOICC. He responded that firstly he did not know what to do or the procedure for reporting. He then engaged the AHL law firm and they said he needed to wait for another nomination.
Asked about the meeting he had with LyXXon that was the subject of a series of text messages, the applicant confirmed LyXXon is the employer at NeXX LeXXl Accountants and that they met as agreed. At that meeting LyXXon explained to the applicant that he did not want to sponsor him and did not sign any employment contract for him. They met around February 2018. Asked if he reported this information to the department after the meeting the applicant said that firstly he did not know what to do and he was trying to engage a law firm. His sister attended the meeting with him and LyXXon had a person there too.
The Tribunal notes the applicant’s evidence about the way in which he paid his former migration agent money for a very lengthy period of 19 months to be returned disguised as wages because he did not want his visa to be cancelled, to be deceptive and concerning and this weighs heavily in favour of his visa being cancelled. It further considers his failure to report what he suspected to be a scam and/or fraud to the department also weighs in favour of the cancellation.
The present circumstances of the visa holder
The applicant is not married. He does not have any children. His parents live in China. He is now working full-time as an accountant at PioXXXr AlumXXXum based in Sunshine. Invited to make any additional oral submissions about his present circumstances, the applicant declined to do so. In her statutory declaration provided to both the department and the Tribunal his sister states that she “is fully reliant” on the applicant “for mental stability” and that her daughter and the applicant have developed a deep affection for each other, spent a lot of time together and that he has become “an unbreakable family member”. The applicant’s sister stated that if his visa is cancelled her “life will be absolutely ruined” and her daughter will lose an uncle she cares for deeply. In the submission provided to the Tribunal it was emphasised that the applicant has spent a significant amount of time in Australia and developed substantial ties to the community through his relationship with his sister KXXi and his niece and has formed a deep emotional bond with his niece, assisting in her upbringing. It was also contended that applicant’s work as an accountant at PioXXXr AlumXXXum following the waiver of his BVE condition demonstrates his commitment to providing accounting services to the community and contributing as a tax paying individual and that PioXXXr AlumXXXum is prepared to sponsor him on a 482 visa. The Tribunal notes the dependency of his sister and niece on the applicant was emphasised by his sister, not the applicant but nonetheless accepts there is a close relationship and this relationship may be weakened should the applicant have to return to China. The Tribunal accords this and the fact that the applicant is now working full time some weight.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no information before the Tribunal that indicates the applicant has demonstrated any subsequent behaviour of concern.
Any other instances of non-compliance by the visa holder known to the MXXister
The Tribunal raised with the applicant at the hearing condition 8107 which requires that a 457 visa holder can only work for the nominating employer in the occupation which is specified in the nomination and that they must commence work within 90 days of a 457 being granted. The applicant said he did not know about this condition. He acknowledged that he did receive a visa grant letter but said he did not fully understand the conditions and relied on the agent who kept telling him there were no problems; keep waiting. The Tribunal notes that all 457 nominees are obliged to read, understand and compile with their visa
conditions and that the applicant’s defence that he did not know about condition 81017 and relied on his agent to be unsatisfactory. This weighs in favour of the cancellation.
The time that has elapsed since the non-compliance
The non-compliance occurred over a period 3 years ago when the applicant lodged his 457 visa application and 28 August 2018 when his visa was cancelled. The applicant has now spent almost 3 years in Australia on a 457 visa and bridging visa allowing work rights and therefore has financially benefited from his recent employment as accountant at Pioneer Aluminum. The Tribunal does not, in the circumstances of this case, consider the period of time that has elapsed since the non-compliance to be significant enough to weigh in favour of not cancelling the visa given the circumstances in which the cancellation arose.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal that the applicant has breached any laws since the non-compliance.
Any contribution made by the holder to the community
Invited to make any submissions in relation to any contributions he has made to the community the applicant said that he pays tax while working. The Tribunal noted that this is an expectation of every person working in Australia. Invited to provide any additional submissions the applicant said there is nothing else. Accordingly the Tribunal accords this no weight in favour of not cancelling the visa.
The Tribunal is of the view it has given genuine consideration to the prescribed circumstances in r.2.41 where they are relevant or applicable in this case.
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] FCAFC 145; (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural 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.
The Tribunal therefore, in addition to the prescribed matters in r.2.41, has had regard to matters under policy include the following.
Mandatory legal consequences
The Tribunal has considered whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without MXXisterial intervention.
Cancellation may result in the applicant being detained and removed from Australia if he did not depart under any conditions that may be imposed on his bridging visa. The applicant
may be subject to s.48 of the Act which may prevent him from applying for further visas while in Australia. The applicant may be affected by Public Interest Criterion 4013 which may limit the granting of a further temporary visa for a specified period.
Subdivision C of Division 3 of Part 2 of the Act was intended, among other things, to prevent non-citizens from benefiting from the failure to disclose or provide accurate and truthful information in a visa application. It places an onus on non-citizens to provide accurate information and to correct inaccurate information in relation to visa applications. Relevant in this case is that when a visa applicant fills in an application they must answer all questions and must give no incorrect answers. The applicant did provide an incorrect answer and the Tribunal's view is that the applicant has benefitted, significantly, from providing the incorrect answers that he was granted a 457 visa which allowed him to stay in Australia from the date of that grant on 27 May 2016 until now; a period of almost 3 years.
While the mandatory legal consequences may cause inconvenience or even hardship to the applicant if his visa is cancelled, he has benefited from providing the incorrect information in his 457 visa application and would not have been granted that visa in 2016 if he had provided correct information.
Consequential cancellations under s.140
There are no consequential cancellations under section 140.
Australia's international obligations
There is no information before the Tribunal that indicates that cancellation of the visa would result in any breach of Australia's international obligations
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.
The applicant said it has cost him a lot of money to stay in Australia during this period and he has borrowed money from his parents and sister and it will cause them trouble (if he has to return to China) and he hopes he can have an opportunity to stay working in Australia. The applicant is working now at PioXXXr AlumXXXum and has established good working relationships with his colleagues. He has been working full-time for 10 months and he will, in time, try to gain a new sponsor.
The applicant said what happened previously did not derive from his original intentions and he regrets what happened. His new employer is able to sponsor him. The Tribunal noted that it had not received any evidence that he is the subject of approved nomination from the new sponsor or that a nomination has been lodged in respect of him. The applicant responded that the employer is capable of qualifying to be a sponsor but has not come up with the nomination for him yet.
The Tribunal took witness evidence from the applicant’s sister who said they were “frauded” by others and it was not their original intention. After they engaged a law firm they realised
what had happened before was wrong and they would like an opportunity to work with the current law firm to do the right thing. The applicant’s sister has been in Australia 11 years and arrived here as a spouse. She is married with one child and her husband is a scientist at St Vincent’s Hospital. She runs a company which is a trading business but does not employ other people at this time. She said this situation has caused stress and did not come from their original intention. After they realised they had been conned/frauded they finally found a law firm to help them.
In sum, the Tribunal considers that the evidence before weighs heavily in favour of cancellation. While the Tribunal notes that the applicant contends that his current employer, PioXXXr AlumXXXum Ptd Ltd, is prepared to sponsor him on a 482 visa, there is no evidence that such a nomination has been lodged or considered by the department. However, even if a new nomination had been lodged and approved, the Tribunal considers that the applicant’s conduct in paying money to an agent to be returned to him disguised as wages, to be of such concern, that a new approved nomination would not likely be sufficient to outweigh all the other factors detailed above. In this respect the Tribunal notes that the payslips being provided to the applicant in return for his payments to the agent clearly, falsely record that the applicant was employed as a an Accountant at NeXX LXXXl Accounting. In making this decision the Tribunal acknowledges that the applicant’s sister and her daughter are very close to him and will suffer some emotional distress should he have to return to China however the Tribunal considers that the applicant could not have been in any doubt throughout the 19 months he was paying money to an agent and receiving false payslips that he was engaging in deceptive activity the seriousness of which is of such weight in the Tribunal’s decision.
In light of the applicant’s conduct after his 457 visa was granted, the Tribunal does not accept the submission that while the applicant acknowledges the answers he provided in his 457 visa application may be in non-compliance with section 101(b) of the Act, that non- compliance was unintentional, not deliberate and was solely the result of deceptive and fraudulent actions of his previous migration agent.
Having considered all the written and oral evidence before it, 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.
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
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Karen Synon 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 MXXister 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 MXXister, 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 MXXister 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 MXXister 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 MXXister 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 MXXister 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 MXXister will consider cancelling the visa:
(i) if the holder gives the MXXister 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 MXXister 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 MXXister the address at which the holder is living; and
(ii) if the holder changes that address before the MXXister notifies the holder of the MXXister’s decision on whether there was non-compliance by the holder—to tell the MXXister 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 MXXister 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 MXXister, 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 MXXister may cancel a visa under subsection (1), the MXXister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
