1503419 (Migration)

[2015] AATA 3077

1503419 (Migration) [2015] AATA 3077 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Zhu Sheng Lim

CASE NUMBER:  1503419

DIBP REFERENCE(S):  BCC2014/353487

MEMBER:Denise Connolly

DATE:14 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 14 July 2015 at 4:30pm

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 Immigration to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant provided to the Tribunal a copy of the delegate’s decision record. The delegate cancelled the visa on the basis that the applicant had breached ss. 101, 103 and 105 of the Act for the following reasons.

3. The delegate found that the applicant had previously been removed from Australia on 21 September 2011 when using the identity ‘Joo Sai Lim’ (DOB 11 May 1967). He did not pay his removal costs and had a debt to the Commonwealth.  The records indicate he then returned to Australia on 6 May 2012 using the identity ‘James Zhu Sheng Lim’ (DOB 11 May 1967) having been granted a UD-976 Electronic Travel Authority. He subsequently applied for a Subclass 457 visa on 6 November 2012 which was granted on 11 December 2012. When applying for that visa the applicant did not provide details of the removal from Australia. Nor did he admit to the debt owed to the Commonwealth.

4. When making the application for the Subclass 457 visa, the applicant claimed to have a Diploma in Agriculture and transcripts from the University Putra Malaysia and several years’ work experience as a Farm Supervisor with Madam Sun. Integrity checks were undertaken by the Department and the University advised that the applicant was not awarded the Diploma as he claimed. The employer also advised the Department he was not employed as a Farm Supervisor as claimed. The delegate found that the applicant did not hold a Diploma of Agriculture as claimed. The delegate found his evidence regarding his work experience was fabricated.  The delegate concluded that there were breaches of s. 101 of the Act which requires that answers given in visa applications are correct.  The delegate also found that the applicant had provided bogus documents; an employment reference, birth certificate, translated Diploma and academic transcripts. This was in breach of s.103. He also found that the applicant had breached s.105 because he did not notify the Department that he had provided incorrect answers in his visa application.

5. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. 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

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.

2. 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.

10.  The Tribunal has considered the s.107 notice on the Department’s file. It 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, as it provided to the applicant the particulars of the reasons why his visa may be subject to cancellation.

The applicant’s response to the s.107 notice

11.  In response to the s.107 notice the applicant apologised for his actions and admitted that it had caused trouble for everyone, particularly his employer. He sought time to hand over his duties to his employer.

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

12.  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 in the following respects: when making the Subclass 457 visa application the applicant provided incorrect information in that he claimed he had not been removed or deported from any country including Australia. He also claimed he had no outstanding debts to the Australian Government, when in fact he had a debt associated with his removal costs. He also fabricated evidence about his work experience and qualifications.

13.  The Tribunal discussed this issue with the applicant at his hearing. He acknowledged he was removed from Australia and had an associated debt. He acknowledged he did not have a Diploma of Agriculture from the University Putra Malaysia as claimed in his visa application. With respect to his employment claims he told the Tribunal he did work with the alleged employer. When asked why the employer denied to the Department that he had undertaken the work as claimed, he said he used to work for the employer but under his old name, Joo Sai Lim, and she probably did not know who the Department was talking about. The Tribunal noted that this did not appear to overcome the problem as the work reference referred to his new name, James Zhu Sheng Lim. It asked in those circumstances how that reference could be genuine if the employer only knew him by his old name. The applicant merely said he needed to work in Australia so his agent got the documents for him.  

14.  Having regard to the information set out in the s.107 notice and the applicant’s oral evidence, the Tribunal is satisfied the applicant provided incorrect information about removal from Australia. He also provided incorrect information about his outstanding debt to the Australian Government. It is satisfied he provided incorrect information about holding a Diploma of Agriculture from the University Putra Malaysia. On the basis of his oral evidence at the hearing it is not satisfied he holds such a qualification as he claimed in the visa application. The Tribunal considers the applicant has not adequately explained why the alleged employer denied that he worked for her as a Farm Supervisor as claimed in his visa application. It finds he provided incorrect information about his work history in his visa application. The Tribunal is satisfied there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

15.  The other non-compliance set out in the s.107 notice relates to the documents provided by the applicant with the visa application, the Diploma of Agriculture said to be from the University Putra Malaysia, the associated academic transcripts, the employment reference and the birth certificate. As set out in the delegate’s decision record, the applicant provided these documents with his visa application. Section 103 requires that the applicant must not give, present, produce or provide to an officer, an authorised system, the Minister, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided. A ‘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.

16.  The delegate’s decision record records that the University Putra Malaysia confirmed that it did not issue the applicant with the Diploma. The applicant acknowledged during the hearing that he does not have such a qualification. On the basis of that evidence the Tribunal reasonably suspects that the Diploma and the associated transcripts purport to have been, but were not, issued in respect of the applicant.

17.  The delegate’s decision record notes that during integrity checks the person purporting to have issued the employment reference denied that the applicant worked for her as claimed. The applicant claims he did work for the employer but under his old name, not the name used in the reference, and this is why she did not acknowledge his employment. The Tribunal is of the view this does not explain why the reference purports to have been issued in his new name. The Tribunal is not satisfied the applicant has adequately explained why the employer denied he worked for her as claimed in the work reference. It is not satisfied the information in the work reference is correct. For these reasons the Tribunal reasonably suspects that the employment reference purports to have been, but was not issued in respect of the applicant. It is also concerned that it is a counterfeit document.

18.  With respect to the birth certificate provided with the visa application the s.107 notice notes that the applicant provided a birth certificate in the name James Lim Zhu Sheng, bearing serial number G001791, shown as extracted by the Registrar Births & Deaths Malaysia on 23 February 2012. The particulars in the s.107 notice, as set out in the delegate’s decision record, explain that integrity checks were conducted using the Malaysian National Identity number listed on the applicant’s passport and the name Lim Soo Jai was recorded. Malaysian authorities confirmed that if a person changes his name, the birth certificate will contain the old name and that his name, Lim Soo Jai, cannot be changed on the birth certificate. When the concerns about this document were raised at the hearing the applicant merely said he changed his name but this does not explain how he obtained a birth certificate in his new name. The Tribunal reasonably suspects that the birth certificate provided is counterfeit or has been altered by a person who does not have authority to do so.

19.  On the basis of these findings the Tribunal is satisfied there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

20.  The s.107 notice explains that it appears the applicant has not complied with s.105 as he would have been aware that he had given incorrect answers in his Subclass 457 visa application dated 6 November 2012 when it was given or provided and he did not, as soon as practicable, notify an officer in writing of the incorrectness. When this was put to the applicant at the hearing he merely repeated that he needed to work in Australia and the agent had arranged the documents and the visa application to enable him to do so. The Tribunal is not satisfied the applicant was unaware that incorrect information had been provided in the visa application. It has formed the view the applicant was fully aware that his Subclass 457 visa application contained incorrect information. It is of the view he provided incorrect information to achieve his desired migration outcome, a visa allowing him to work in Australia. On the basis of these findings the Tribunal is satisfied there was non-compliance with s.105 by the applicant in the way described in the s.107 notice.

21.  For these reasons, the Tribunal finds that there was non-compliance with s.101, s.103 and s.105 by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

22. 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).

23. 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 content of the genuine document (if any)

• 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

• the circumstances in which the non-compliance occurred

• the present circumstances of the visa holder

• the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

• any other instances of non-compliance by the visa holder known to the Minister

• the time that has elapsed since the non-compliance

• any breaches of the law since the non-compliance and the seriousness of those breaches

• any contribution made by the holder to the community.

24.  Whilst 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) 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

25.  The Tribunal takes into account the applicant’s response to the s.107 notice when he apologised for his actions and admitted that it had caused trouble for everyone, particularly his employer.

26.  The Tribunal discussed the factors set out above, the relevant policy and the applicant’s circumstances, with him at the hearing. Having considered all of the evidence before it, the Tribunal is satisfied that the applicant was removed from Australia in 2011 and at the time of the Subclass 457 visa application, owed a debt to the Australian Government associated with removal costs. It is satisfied he does not hold a Diploma in Agriculture qualification as claimed, or that he has the employment background claimed in the work reference. It finds that he provided bogus documents with his visa application, the Diploma, academic transcripts, employment reference, and birth certificate. The Tribunal is of the view that had it been disclosed that he had previously been removed from Australia and he had a debt it is unlikely the applicant would have been granted a visa. It is also likely he would have been required to make arrangements to pay an outstanding debt to the Commonwealth before any visa was granted. The Tribunal is also of the view that, had it been disclosed that he did not have a qualification or the employment background claimed, he would not have been granted the visa. It is satisfied the visa was granted on the basis of the incorrect information provided and the bogus documents about his identity, qualification and employment background.

27.  The Tribunal considers the non-compliance in this case to be significant. The Tribunal asked the applicant about the circumstances in which the non-compliance occurred. He said it happened because he changed his name and religion, and because he wanted to work lawfully with a visa in Australia. He acknowledged that the removal had occurred in 2011 because he had overstayed a visa and remained in Australia unlawfully for 4 years. When he sought advice about getting another visa for Australia the agent said he could apply for a visa and he would organise it, suggesting it was the agent who provided the incorrect information and bogus documents. The Tribunal is of the view the applicant knowingly provided incorrect information and bogus documents in order to achieve his desired immigration outcome, a visa allowing his employment in Australia. The Tribunal considers the applicant has demonstrated a willingness to provide incorrect information and bogus documents with complete disregard for Australia’s immigration laws. It considers this to be a highly significant factor.

28.  The Tribunal asked the applicant about his present circumstances. He said he is still hoping he can remain in Australia and work here lawfully. He said he has handed over his duties to his employer. When asked if he is currently working in Australia he responded vaguely and said he did not know if his visa allows it. The Tribunal repeated the question however he would not answer it and said he needed to talk to a lawyer. The Tribunal is concerned that the applicant was not being frank and honest in his answers.

29.  There is no evidence that the cancellation has an adverse impact on anyone in in Australia apart from the applicant. In relation to any international obligations, he indicated he had changed his name and religion but he gave no further evidence on this issue. The applicant has not claimed any fear of returning to his home country. The Tribunal is satisfied there is no evidence indicating any breach of international obligations.

30.  The applicant acknowledged that he had previously remained in Australia unlawfully for 4 years. He said he did this because he needed the money.  The Tribunal also considers this to be a significant breach.

31.  When asked about any contribution he is making to the community, the applicant said he is not working and he is living off his savings. When asked if there were any other circumstances he wished for the Tribunal to consider he repeated that he still wants to work here and hopes to be given another chance.

32.  The Tribunal has taken into account all of the available evidence in this case.  It has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. In weighing up all of the evidence the Tribunal is of the view the breaches particularised in that notice are significant. It is not satisfied the applicant has adequately explained the non-compliance. The Tribunal is particularly concerned that the most recent non-compliance comes after his removal from Australia for remaining here unlawfully for 4 years. It is concerned that he was not being frank and honest in his evidence to the Tribunal.  Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes it is the preferable decision that the visa should be cancelled.

DECISION

33.  The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Denise Connolly
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:

1. 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.

1. 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).

1. 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.

2. 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.

3. 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.

4. 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.

5. Bogus documents not to be given etc.

   A non‑citizen must not give, present, produce or provide to an officer, an authorised system, the Minister,  or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

6. Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)      an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c)      information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

7. 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.