1507750 (Migration)

[2015] AATA 3798

1507750 (Migration) [2015] AATA 3798 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tri Huynh

CASE NUMBER:  1507750

DIBP REFERENCE(S):  BCC2014/3499576

MEMBER:Alan Duri

DATE:3 December 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 03 December 2015 at 4:11pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Huynh was born in 1991 in Vietnam.  He came to Australia on 26 July 2013 on a Subclass 573 student visa. 

2. On 18 March 2014 Mr Huynh lodged an application for a Subclass 189 skilled visa.  Amongst other things, Mr Huynh’s visa application indicated that he was a qualified accountant and that he had undertaken an English language IELTS test on 16 November 2013 and was assessed as having superior English language ability.

3. On 19 March 2014 the department granted Mr Huynh a Subclass 189 visa.

4. The department subsequently received advice from CPA Australia that they had no record of Mr Huynh’s skills assessment.  The department also received information from IELTS indicating that there was no record that Mr Huynh had ever sat for an IELTS test.

5. In response to the department’s s.107 letter, Mr Huynh indicated that the visa application was not completed by him.

6. On 22 May 2015 the department cancelled Mr Huynh’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

7. The question before the tribunal is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Hearing

8. Mr Huynh appeared before the tribunal on 1 December 2015 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

9. Mr Huynh was represented by his registered migration agent Mr David Nguyen.

10. Mr Huynh told the tribunal that he is not a qualified accountant and that he has never sat an IELTS tests.  However, he indicated that he studied accounting in Vietnam and the scored a “B” in English in Vietnam.

11. Mr Huynh told the tribunal that he first came to Australia on 20 July 2013 on a student visa.  A friend approached him one day for coffee and asked whether he was interested in staying in Australia legally.  This person was called Thao.  He was about 38 to 40 years old and worked in a hot bread shop.  Thao asked Mr Huynh for his passport, driver licence and a police clearance certificate from Vietnam.  Thao suggested that because Mr Huynh studied accounting in Vietnam he could obtain a skilled visa as an accountant.  Mr Huynh gave evidence to the effect that he had no knowledge of how Thao managed to obtain a visa.  In particular, he had no knowledge that false information was provided on the visa application.

12. The tribunal asked Mr Huynh about his circumstances.  He stated that he is in good health.  His father has passed away, and his mother and four siblings live in Vietnam.  He has no close relatives in Australia.  Mr Huynh indicated that he was single and added that he has had a girlfriend for the last two months.  Mr Huynh later indicated that in fact he has been living with his girlfriend for the past six months and that she is now two months pregnant.  He originally though his girlfriend was born in 1986 and was called Cam Tu Nguyen.   After checking his phone Mr Huynh identified his girlfriend as being Cam Tu Hoang Nguyen (date of birth 11 January 1988).  He stated that she was born in Vietnam and came to Australia in 2006 on a partner visa, but separated from her husband about six months ago.  Mr Huynh understood that Ms Nguyen is an Australian citizen.

13. Mr Huynh indicated that he has had no trouble with the police.  He advised that since his arrival in Australia he complied with his student visa conditions.  An uncle supported him while he was on a student visa.  However, since November 2014 has been employed in a marble factory.

14. Mr Nguyen conceded that there was no issue with the validity of the s.107 notice.  Mr Nguyen noted that Mr Huynh was caught up with a large-scale scam at the highest level.  Mr Nguyen submitted that Mr Huynh did not initiate the fraud.  He also suggested that Mr Nguyen had studied accounting in Australia and was intending to undertake an accounting course in Australia and may well have obtained a skilled visa through the normal process. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. 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.

17. 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?

18. The question 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 and s.103 of the Act in the following respects:

    ·Regarding s.101 (visa applications to be correct), the s.107 notice identified that Mr Huynh indicated on his application form that his nominated occupation was management accountant and that he had a skills assessment from CPA Australia dated 20 January 2014.  Mr Huynh also indicated on the visa application that he had undertaken an IELTS test on 16 November 2013 with a language ability of “superior”.  In fact, CPA Australia advised there was no record of Mr Huynh’s skills assessment.  Furthermore, checks undertaken by the department indicated there was no record that Mr Huynh had ever undertaken an IELTS test.

    ·Regarding s.103 (bogus documents not to be given), the s. 107 notice indicated that the visa application included electronic copies of Mr Huynh’s skills assessment and IELTS results.  The s.107 notice indicated that the particular documents were counterfeit or had been altered by a person who does not have the authority to do so.  Therefore the particular documents are bogus documents as defined in s.97 of the Act because the issuing authorities confirm they have no record of the documents ever being issued.

19. Mr Huynh makes no claims that he is a qualified accountant or that he has superior English skills.  Mr Huynh makes no claims that the documents included with the visa application (that is, the electronic copies of the skills assessment and IELTS tests) are genuine. 

20. Therefore, the tribunal finds that there was non-compliance with s.101 and s.103 by Mr Huynh in the way described in the s.107 notice.

    Should the visa be cancelled?

21. 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).

22. 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.

23. 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.

24. As noted above, Mr Huynh was granted a Subclass 189 visa largely on the basis that he claimed to have met the relevant criteria, including having a particular skills assessment (as an accountant) and a particular level of English (superior).  The correct information is that Mr Huynh is not a management accountant and he has no evidence that he has any particular English language skills, let alone superior skills.

25. It is apparent that the decision to grant the visa was based on incorrect information and bogus documents supplied by (or on behalf of) Mr Huynh.

26. Mr Huynh told the tribunal that he is single but later told the tribunal that he has been living with an Australian citizen (Hoang Cam Tu Nguyen date of birth 10 January 1988) for the last six months.   Mr Huynh added that Ms Nguyen is two months pregnant.  Mr Huynh was initially unable to supply the tribunal with Ms Nguyen’s full name and date of birth -originally suggesting that she was born in 1986.   After checking something on his phone Mr Huynh provided the tribunal with Ms Nguyen’s full name and her date of birth.  The tribunal checked the department’s records after the hearing and discovered that a person with that name and date of birth was granted a Subclass 801 permanent visa on 12 February 2015.  There the tribunal is prepared to accept that the person Mr Nguyen claims to live with is an Australian permanent resident.  However, no evidence was provided to the tribunal concerning the pregnancy or Mr Huynh’s relationship with Ms Nguyen.  Assuming Ms Nguyen is pregnant, it is impossible to ascertain at this stage whether or not Mr Huynh is the father. Given that Mr Huynh’s skilled visa application contains fabricated information and that given the vagueness of Mr Huynh’s evidence about Ms Nguyen’s personal details, the tribunal is not prepared to accept Mr Huynh’s evidence at face value that he has made an Australian citizen or permanent resident pregnant.

27. The tribunal notes Mr Nguyen’s submission that Mr Huynh was an unwitting victim of a large scale fraud and that as an accounting student Mr Huynh may well have been granted a skilled visa in due course on his own merits.  

28. Whether or not Mr Nguyen would have otherwise qualified for a skilled visa in the future is speculative.

29. The tribunal finds Mr Huynh’s claims that he was an innocent victim of a fraud to be somewhat ingenuous.  Mr Huynh was studying in Australia at the time.  Mr Huynh claims that he accepted the assurances of Thao, a hot bread shop worker that he could stay in Australia legally based on his previous study in Vietnam.  This stretches credulity.

30. There is no information before the tribunal that indicates that Mr Huynh has otherwise failed to comply with migration law or Australian law generally. 

31. The tribunal notes the department’s policy guidelines concerning visa cancellations.  Although the tribunal is not bound by these guidelines, some of the points are pertinent in reaching a decision whether or not to cancel a visa.

32. In this case there are no persons in Australia whose visa would be cancelled as a result of the decision to cancel Mr Huynh’s visa.

33. There is no evidence or suggestion before the tribunal that the visa cancellation may result in Australia breaching its international obligations.

34. In summary, the tribunal considers the gravity of the breach of s.101 and s.103 strikes at the very heart of the integrity of the migration program and the skilled migration program in particular.  The Subclass 189 visa was granted to Mr Huynh on the basis of concerted fraud.  Mr Huynh’s claims that he was an innocent “victim”.  He also claims to be in a relationship with an Australian permanent resident who is two months pregnant.  The tribunal does not accept that Mr Huynh’s claims about his circumstances outweigh the gravity of the breach.

35. The tribunal has decided that there was non-compliance by Mr Huynh 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

36. The tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Alan Duri
    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.

    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.