1505930 (Migration)

1505930 (Migration) [2016] AATA 3914 (16 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Philemon Sonny Jie Thian
CASE NUMBER:  1505930
DIBP REFERENCE(S):  BCC2014/2147211
MEMBER:Bruce MacCarthy
DATE:16 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 885 (Skilled - Independent) visa.
Statement made on 16 May 2016 at 8:40am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 885 (Skilled - Independent) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that applicant had not complied with s.101(b) and s.103 of the Act when completing his application for the visa and had not complied with s.102(b) of the Act when completing passenger cards on entry and departure from Australia. The issue in the present case is whether at least one of those grounds for cancellation is made out, and if so, whether the visa should be cancelled.
INVITATION TO A HEARING
On 19 February 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 April 2016.
On 16 March 2016, the applicant’s registered migration agent advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. 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 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. The provisions of s.107A of the Act indicate that possible non-compliance as in connection with previous visas may be grounds for cancellation of the current visa.
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.
In the present matter, a notice under s.107 (“the s.107 notice”) was issued on 18 March 2015 (see folios 67 to 71 of the Department’s file). Neither the applicant nor his agent has claimed that the notice was invalid. 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.
On 28 April 2016, the Tribunal wrote to the applicant (by letter sent by email to the applicant’s migration agent who use is authorised recipient) in accordance with the provisions of s.359A of the Act. The letter drew the applicant’s attention to the fact that the Department sent him the s.107 notice on 18 March 2015. The letter set out particulars of information set out in that notice, as outlined below, and pointed out that the information was relevant because it identified a number of instances in which he may not have complied with various sections of the Act, and it was relevant because the information in the notice suggested that the delegate had reached the necessary state of mind to engage s.107 and that the notice complied with the statutory requirements set out in the Act.
The notice went on to say that, if the Tribunal relied on the information in making its decision, it may conclude that the delegate had reached the necessary state of mind to engage s.107 and that the notice complied with the statutory requirements set out in the Act. The Tribunal might also conclude that he had not complied with s.107 and that the notice complied with the statutory requirements set out in the Act and might conclude that his visa should be cancelled.
The letter invited the applicant to give comments on, or respond to, the information in writing by 12 May 2016. Neither the applicant nor his agent has responded to the Tribunal’s letter as at the date and time of this decision.
The non-compliance identified and particularised in the s.107 notice was non-compliance with sections 101(b), 102(b) and 103 of the Act as outlined below:
Non-compliance with s.101(b)
The s.107 notice identified and particularised non-compliance with s.101(b) in the following respects:
·in his application for the Subclass 573 Student visa granted on 27 June 2007, he provided incorrect answers in relation to his name, date of birth, qualifications and employment. In particular, he stated that he had completed a Bachelor of Management degree from YAKSI College in 2003 and that he had been working as a Finance Manager at PT Nawaputra Gemilang from 2002.
·in his application for a “Student visa with Permission to Work” granted on 7 August 2007, he provided incorrect answers in relation to his name and date of birth.
·In his application for the [Subclass 485] visa granted on 11 June 2010, the applicant gave a number of incorrect answers in relation to his name, date of birth and his previous stay in Australia. Specifically, he gave his Family name as “Thian”, his Given names as “Philemon Sonny Jie”, his Date of Birth as “8 APR 1976” and answered in the negative to the question on page 2 of the application form “Are you currently, or have you ever been, known by any other names (including names before marriage, aliases or any alternative spelling in any of your names)?” He answered in the negative to question on page 6 of the application form “Have you or any other person in this application, ever: been excluded from or asked to leave any country (including Australia)?” He answered in the negative to question on page 8 of the application form “Have you or any person in this application, ever had a visa cancelled?”
·In his application for the [Subclass 885] visa granted on 1 July 2010, he provided similar answers to questions corresponding to those mentioned in the preceding dot point.
The s.107 notice stated that the Department had received confidential information indicating that the applicant had previously been in Australia, was also known as “Sonny Famous Tjie” and that his date of birth was 8 April 1970. It is stated that a facial image comparison specialist from the Department had undertaken a facial comparison report and had identified that the person known as Sonny Famous Tjie whose date of birth was 8 April 1970 is the same person as the person known as Philemon Sonny Jie Thian whose date of birth is 8 April 1976.
The s.107 notice also stated that checks of departmental databases had confirmed that the applicant had previously entered Australia on 24 March 2000 under the name Sonny Famous Tjie and date of birth 8 April 1970 as the holder of a Subclass 560 visa. Under that identity, he was later granted a Subclass 880 visa, and that visa was cancelled under s.109 of the Act because of a breach of s.103 of the Act (relating to the provision of a bogus document, namely a degree in economics major in accountancy which was used to provide the necessary points required for the visa.) The notice states that the applicant remained unlawfully in Australia following the cancellation of his visa until his departure from Australia on 6 May 2007.
Non-compliance with s.102(b)
The s.107 notice identified and particularised non-compliance with s.102(b) in the following respects:
·In unspecified Incoming and Outgoing Passenger Cards completed by the applicant when he entered and left Australia, he provided incorrect answers regarding his identity and date of birth by giving his Family name as “Thian”, his Given names as variants of “Philemon Sonny Jie”, and his Date of Birth as “8/4/1976”.
·He gave an incorrect answer when he signed a declaration on an incoming passenger card which stated, in part, that the information he had given on that card was “true, correct and complete.”
Non-compliance with s.103
The s.107 notice identified and particularised non-compliance with s.103 in the following respects:
·He provided a bogus document in the form of a certificate of management and an academic transcript from YAKSI College of Management dated 14 August 2003.
The applicant’s response to the s.107 notice.
The applicant’s migration agent responded to the s.104 notice, on the applicant’s behalf, on 23 April 2015. That response and its attachments may be found at folios 72-77 of the Department’s file. In brief, the agent acknowledged that the applicant had not complied with s.101(b), s.102(b) and s.103 of the Act. He acknowledged that he had not put in correct answers in his applications in 2010 saying that, after leaving Australia in 2007, the applicant’s “yearning to return to Australia” motivated him to change his name and obtain a fresh passport in Indonesia. He said that the applicant had not disclosed the offences to the Department for fear of being deported.
The agent said that the applicant had admitted that he had given the incorrect answers in passenger cards because he believed his future would be in Australia and his answers were “driven by fear of his wrongdoings being uncovered. He said that the applicant had provided bogus documents in 2005 in support of his application for a Subclass 880 visa, the visa [granted to him in the identity of Sonny Famous Tjie] that was subsequently cancelled under s.109 of the Act. The agent said that the applicant had also submitted a fake document namely the document relating to his claimed bachelor degree in connection with the application for the Subclass 885 visa and “claimed 5 points for community language in the application.”
The agent provided a number of attachments, including 2 notices of tax assessments and 3 character references.
The Department’s file does not contain a copy of the application for the student visa which was granted on 27 June 2007, but does contain copies of the other 3 applications mentioned in the s.107 notice. The Tribunal is satisfied that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice in relation to those 3 applications. Given this, and given that the applicant’s migration agent did not dispute that there had been non-compliance as set out in the notice, the Tribunal also accepts that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice relation to the first application.
Similarly, the Tribunal’s file does not contain a copy of any passenger card completed by the applicant but, given the agent’s acceptance that there were breaches of s102(b) as particularised in the notice, the Tribunal finds that there was non-compliance with s.102(b) by the applicant in the way described in the s.107 notice.
The file does not contain any copy of the bogus documents which had been submitted to the Department in connection with an earlier application and which led to the cancellation of a visa held by the applicant [under the Sonny Famous Tjie identity]. However, given that the applicant’s agent has acknowledged that bogus documents were submitted to the Department in breach of s.103 and that the visa in question was subsequently cancelled under s.109, the Tribunal finds that there was non-compliance with s.103 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 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.
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.
The correct information
In his application forms, the applicant said that he had never been known by any other name other than the name he gave. He gave a false date of birth. The Tribunal finds that he is the person previously known as Sonny Famous Tjie and that his true date of birth is 8 April 1970.
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
Had the applicant disclosed in his true identity in his applications for student visas in 2007, it would have become apparent that he had previously held a visa which had been cancelled under s.109 because of the provision of bogus documents and had only recently left Australia after that visa was cancelled. The Tribunal is satisfied that he would not have been granted student visas in 2007, and, as a consequence, would not have gained qualifications led to the later granting of skilled visas. The Tribunal is further satisfied that, had he disclosed his true identity in his 2009 application for the Subclass 485 visa and in the 2010 application for the Subclass 885 visa, these applications would have been refused.
Given the response of the applicant’s agent, the Tribunal is satisfied that the applicant gave the false information in order to secure his re-entry to Australia and the opportunity to seek permanent residence here.,
Are there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act?
There is nothing to suggest that there is anyone else in Australia whose visa would be cancelled under s.140 of the Act as a consequence of the cancellation of the applicant’s visa.
Would the visa cancellation result in Australia breaching its international obligations?
The applicant has not claimed that the visa cancellation would result in any breach of Australia’s international obligations, and there is no evidence before the Tribunal which would suggest that that is a possibility.
The circumstances in which the non-compliance occurred
The evidence before the Tribunal indicates that, in support of a previous visa granted to him under his original identity, the applicant submitted a bogus document. When this became known to the Department, his visa was cancelled under s.109. Following this, he left Australia in June 2007. His agent’s response to the s.107 notice indicates that, soon after that, he changed his name and obtained a new passport under that name, with a different date of birth. He returned to Australia having obtained a new visa under the new identity, and failing to disclose his previous identity. The Tribunal is satisfied that he deliberately provided incorrect information and a bogus document to enable him to obtain visas under the new identity which allowed him to re-enter and remain in Australia.
The subsequent behaviour of the visa holder concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant responded to the s.107 notice (and to a previous notice issued in connection with an earlier visa).
Any other instances of non-compliance by the visa holder known to the Minister
The applicant previously failed to comply with s.103 of the Act, in connection with an application for a visa ultimately issued to him under his previous identity. This resulted in the cancellation of the visa under s.109. Apart from this, the Tribunal is not aware of any other instance of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The first instance of non-compliance particularised in the s.107 notice dates back to 2007. The most recent instance occurred in June 2010. The Department’s file does not clearly identify when the Department became aware of the non-compliance, but the s.107 notice was issued in March 2015. The decision to cancel the visa was made in April 2015. While almost 5 years had elapsed since the last instance of non-compliance, the Tribunal does not consider this to be a particularly lengthy period, given that the visa concerned was a permanent visa.
The present circumstances of the visa holder
In his response to the s.107 notice, the agent has made no explicit reference to the applicant’s current circumstances, other than to say that he has had the opportunity to live in Australia for almost 15 years [as at April 2015] and that he is remorseful about his past mistakes and would find it “devastating and traumatic” if his visa were to be cancelled.
He has provided tax returns to show that the applicant has paid tax in Australia and earns a reasonable income. He has provided character references, though only one of them indicates that the writer is aware of the circumstances which led to the cancellation of is the visa. 2 of the references predate the date of the s.107 notice.
Any contribution made by the holder to the community.
One of the references mentions that the applicant has been a member of a church congregation for more than 3 years and that he “has regularly contributed in providing food for members after service as well as assisting the elderly members when in need.” While this is commendable, the Tribunal believes it has to balance such contribution against the public interest in ensuring that people do not gain the benefit of the migration to Australia by deliberately providing incorrect information and bogus documents.
Any breaches of the law since the non-compliance and the seriousness of those breaches

The Tribunal is not aware of any breaches of the law since the non-compliance.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder 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 person from making a valid visa application without the Minister’s intervention
The applicant is currently in Australia with a bridging visa. Cancellation of the visa may result in the applicant being unlawful in the event that a further Bridging visa is not granted and he remained in Australia. In such hypothetical circumstances, he may become subject to detention. However, there is no evidence before the Tribunal to suggest that, in such circumstances, he would remain indefinitely in detention.
The applicant has not claimed that, in the event of cancellation, there are any provisions in the Act which would prevent him from making a valid visa application without the Minister’s intervention and in the circumstances of the present case, the Tribunal is not aware of any such provisions.
Conclusion
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 885 (Skilled - Independent) visa.
Bruce MacCarthy
Member
ATTACHMENT – Relevant Extracts from the Migration Act 1958:
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)      purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
102Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, 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.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

[2016] AATA 3914

16 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Natural Justice

Procedural Fairness

Statutory Construction

Judicial Review