Australian Immigration Daily News

An email from a reader:

Hi Peter,

We recently represented a visa holder whose visa had been cancelled (my colleague Rosella William being the brains behind the submissions). The person had arrived in Australia on the day the DIBP had issued a NOICC to his overseas address. The NOICC claimed that the sponsor had withdrawn his sponsorship prior to his arrival in Australia, that he had known of the withdrawal and that he did not advise DIBP of a change in circumstances (s.104; s.107; s.109 refer). The sponsor claimed there had not been any communication with the visa holder since the visa was issued and they had no idea when or if he was coming to Australia.

Because the applicant arrived in Australia before he received the (offshore) NOICC, that Notice was withdrawn and 6 months and 1 day after his arrival DIBP issued another NOICC on the basis he had not commenced work with the employer within the required 6 month period. Despite the visa holder providing evidence of commencing work DIBP insisted the documents were fraudulent and cancelled the visa. At this stage we had not met the person and he came to us for the appeal.

Some interesting facts emerged when we were preparing the appeal; there was a payslip, photos of the visa holder at work, evidence of funds transferred to the migration agent following the visa approval (totalling more than $25,000 [only 3 people in the application including 1 child so a hefty migration agent fee for a Subclass 119 visa! ] ) and a claim that the employer did not want the visa holder to continue unless he made a payment of $45,000. All very confusing as the sponsor continued to assert that he had not spoken or met the visa holder and had no idea he was even in Australia (despite issuing him with a payslip!).

Anyway we were successful with the appeal to the tribunal (which is not published) and the decision contained the following:

The agent asked him to pay $25,000 to cover the costs of arranging the visa. The applicant paid this in 2 instalments with some money paid in May 2014 and the rest in July 2014. The applicant provided to the Tribunal evidence of email and mobile phone contact between himself and XXX between January and August 2014. This included an email dated 1 May 2014 from XXX from the migration agent’s office in Australia stating the visa was approved and that they would send him the approval letter ‘upon your payment to XXX of the 2nd stage service fee’. The applicant provided a copy of a bank transfer dated 23 July 2014 of AUD14, 600 and his text to the agent XXX on 23 July 2014 advising that he had now paid the second instalment. He also provided an email dated 4 August 2014 asking them to confirm receipt of the payment as he had not heard from them.

The evidence before the Tribunal demonstrates there was ongoing contact between the applicant and the agents in China and Australia. The Tribunal is also very concerned that the sponsor withdrew sponsorship about a week after the applicant paid 70,000 RMB to the agent, and considers the sponsor and agents’ actions in this matter warrant further investigation (emphasis added).

The Tribunal finds the applicant had no actual knowledge of the change in circumstance, that is, the withdrawal of the nomination 12 days before he arrived in Australia. Section 104 requires actual knowledge before the obligation imposed by s.104 (1) is engaged. Because there was no actual knowledge on the part of the applicant (Farah v MIAC (2011) 120 ALD 249 at [12), he was not obliged to inform an officer in writing of the new circumstances. The Tribunal finds there was no no-compliance with s.104.

All in all a great result with so many twists and turns it felt like we were in an Agatha Christie mystery. 

Regards
Peter Loughton | Migration Consultant

Excellent work by Rosella and yourself Peter-an example of why people need skilled migration advice and skilled advisers.