1508152 (Migration)

[2015] AATA 3658

1508152 (Migration) [2015] AATA 3658 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Tai To

CASE NUMBER:  1508152

DIBP REFERENCE(S):  BCC2014/3499005

MEMBER:Antoinette Younes

DATE:19 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 19 November 2015 at 5:26pm

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 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act, in that he provided incorrect answers in the 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.

3. The applicant appeared before the Tribunal on 12 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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.

7. 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.

8. 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?

9. 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(b) in that on 10 March 2014, the applicant lodged an application for a subclass 189 skilled (Independent) visa via the Department’s online facility.

10. As part of this application, the applicant completed an electronic ”Application for Points Based Skilled Migration Visa” form. The application form contains a number of questions and in particular the following questions and the answers the applicant provided as follows:

    a.In response to the question “does the applicant have suitable skills assessment from the relevant assessing authority?” the applicant answered “yes”.

    b.The applicant provided further information regarding his skills assessment at page 4 of the application form noting that the Nominated Occupation is Taxation Accountant, that the name of the assessing authority is the Certified Practising Accountants of Australia, that the date of the skills assessment is 31 August 2012, and that the reference/receipt number for the assessment is 261578.

    c.In response to the question “Has the applicant undertaken an English language test within the last 36 months?” the applicant answered “yes”.

    d.The applicant provided further information regarding his English language test at page 6 of the application form namely that the name of the test is IELTS, that the date of the test is 4 August 2012, that the test reference number is 740951, and that the language ability is superior.

    e.At page 8 of the application form under the title Declarations, which has a warning namely that giving false or misleading information is a serious offence.  The applicant declared ”yes” at “the applicants declare that they: have read and understood the information provided to them in this application. Has provided complete and correct information in every detail on this form, and on any attachments to it”.

    f.Based on the information provided by the applicant in the visa application, he was found to have satisfied the criteria to be granted the subclass 189 visa.

    g.Subsequent to the grant, on 16 January 2015, CPA Australia advised the department that in their database they had no record of the applicant’s skills assessment, that they had no record of the reference number provided by the applicant, and no record of the applicant’s name.

    h.The Department undertook checks with the IELTS Report Form Verification Service which showed that there is no record of the applicant undertaking an IELTS English test; the Verification Service was unable to locate any record of the reference number the applicant provided and there was no record of the applicant’s name in their database.

11. The Department indicated in the Notice that given the above information, it appears that the applicant had not complied with s.101(b) of the Act because he had provided incorrect answers in the application form.

12. In response to the Notice, the applicant essentially denied the provision of incorrect information/documents and indicated that a migration agent whom he paid a fee of $70,000 had completed the application and secured the visa.

13. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the Notice of Intention to Consider Cancellation as outlined in the decision record provided by the applicant to the Tribunal. The applicant stated that he did not submit the documents or lodge the application for the visa. He stated that whilst he was studying at TAFE, he met a person in a coffee shop who turned out to be a migration agent. He said the agent told him that he would be able to obtain for him the skilled visa at a cost of $70,000. He said he had asked him for his details about his studies and background and he was insistent that the applicant should give him his passport and birth certificate.

14. The Tribunal asked the applicant if he has any evidence to support his claim that he had paid this person $70,000 and he stated that he paid the man in cash and therefore has no proof. The Tribunal noted that $70,000 is a substantial sum of money and asked him where he got the money from. The applicant stated that he borrowed money from friends and his parents had transferred money to him as well but the transfers related to his fees. The Tribunal asked the applicant if has any evidence such as transfers or any document from his friends confirming that he had borrowed money from them and the applicant confirmed that he has no evidence to support the $70,000 payment in cash to the migration agent.

15. The Tribunal asked the applicant how he paid the cash to the agent and the applicant stated that it was in front of a Medicare office. He said the agent stood outside the office and counted the cash. He said there should be evidence through CCTV outside Medicare. The Tribunal indicated to the applicant that it is difficult to accept that he would pay such a substantial sum of money in cash to a person whom he did not know and that such a transaction would be conducted in public in the street.  The applicant said that was what happened.

16. The Tribunal asked the applicant if he had sought any advice from another agent prior to speaking with the agent whom he paid money and the applicant stated he did not seek any advice in relation to his eligibility for permanent residence. He said he had heard rumours about the success of that agent. The Tribunal asked the applicant if he complained to any authorities such as the OMARA about the agent and he said he did not complain.

17. The applicant gave evidence that he came to Australia in 2007 and that currently he is not working. He said he holds a Bachelor of Commerce in accounting, and a diploma from QIBT completed in 2009. He said he has also studied joinery at TAFE.

18. The applicant reiterated that he did not provide false and or incorrect information to the Australian authorities. He said he has declared and paid his taxes and has participated in the community. The Tribunal asked him about his community participation and he said he had searched for a job and had attended courses to increase his opportunities in jobs in security and control. He said he loves Australia.

19. In oral submissions, the applicant’s adviser referred to allegations of fraud relating to staff of the Department and indicated that the applicant should not be held responsible for the fraudulent conduct of the staff or the migration agent.

20. In written submissions to the Tribunal the applicant’s explanations were essentially reiterated; the adviser noted that “it appears that departmental staff assumed as did the PA that the application submitted was above board. The PA has been a victim of a departmental fraud and he should not be made a scapegoat for his naivety and trust in those who purport to be migration advisers. Fraud was perpetrated by his consultant and by the Department.  Our client was not complicit in any fraud perpetrated by the parties but as he has claimed he has been a victim in this matter.” In support of the submissions, the representative provided copies of the applicant’s educational qualifications, work reference from Sparkles Australia, payment summary, and a newspaper article relating to visa bribes.

21. The Tribunal has carefully considered the applicant’s explanations and submissions. The Tribunal finds it implausible that the applicant would pay a stranger, albeit, claimed to have been subsequent to the grant the visa, a sum of $70,000. The Tribunal finds it difficult to accept that such a large sum of money would be given in cash to a person essentially in public. The Tribunal finds it difficult to accept that the applicant has been unable to produce a single document to confirm that he had access to any such funds. The Tribunal finds it difficult that the applicant would give valuable items such as his passport and birth certificate to a person whom he did not know. On the basis of the available information, the Tribunal does not accept that the applicant has paid an agent $70,000.

22. In consideration of the evidence as a whole, the Tribunal finds that the applicant has not complied with s.101(b) in that:

    a.The applicant provided an incorrect answer, namely “yes” to the question “Does the applicant have suitable skills assessment from the relevant assessing authority?”, when he did not.

    b.He provided incorrect information at page 4 of the application form noting that the Nominated Occupation is Taxation Accountant, that the name of the assessing authority is the Certified Practising Accountants of Australia, that the date of the skills assessment is 31 August 2012, and that the reference/receipt number for the assessment is 261578.

    c.He provided an incorrect response to the question “Has the applicant undertaken an English language test within the last 36 months?” the applicant answered “yes”.

    d.He provided incorrect information regarding the English language test at page 6 of the application form that the name of the test is IELTS, that the date of the test is 4 August 2012, that the test reference number is 740951, and that the language ability is superior.

    e.He made a false declaration at page 8 of the application form under the title Declarations, which has a warning namely giving false or misleading information is a serious offence stop the applicant declared ”yes” at “the applicants declare that they: have read and understood the information provided to them in this application. Has provided complete and correct information in every detail on this form, and on any attachments to it”.

23. 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?

24. 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).

25. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

26. 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

27. The correct information is that the applicant did not have a suitable skills assessment from CPA Australia and that he had not undertaken an English language test within the last 36 months.

    ·     The content of the genuine document (if any)

28. The Tribunal accepts as plausible that due to a departmental system error, relevant documents provided in support of the application were corrupted and consequently the Tribunal does not make any findings in relation to any documents provided in support of the visa application.

    ·     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

29. The decision to grant the applicant a subclass 189 was based, wholly or partly on the incorrect information that the applicant provided in relation to his skills assessment and English language test results. Pursuant to regulations 189.212(1)(a) and 189.213, the applicant was required to demonstrate that at the time of the invitation to apply, the relevant assessing authority had assessed the applicant’s skills as suitable for the nominated skilled occupation and that the applicant had competent English.

30. The applicant provided incorrect information to support his claim that he met the regulations.

    ·     The circumstances in which the non-compliance occurred

31. On 10 March 2014, the applicant lodged the visa application and provided incorrect information in relation to the skills assessment and IELTS test results. The applicant has not taken any responsibility for the provision of the incorrect information and has continued to assert that he paid a migration agent $70,000. As noted earlier, the Tribunal has not accepted that the applicant has paid any agent $70,000.

    ·     The present circumstances of the visa holder

32. The applicant is currently employed as a full-time branch manager and his employer sparkles Australia has provided a written reference noting amongst other things, the applicant’s duties and that he has been “a productive member of our team”. The Tribunal is aware that the applicant has a pending Australian citizenship application which, as noted in the decision record was lodged on 10 May 2015, subsequent to receiving the section 107 notice.

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

33. The applicant responded to the section 107 notice and he attended a hearing before the Tribunal. However, he continues to maintain that he was not responsible for the provision of the incorrect information, which the Tribunal, and for the stated reasons has not accepted.

    ·     Any other instances of non-compliance by the visa holder known to the Minister

34. There is no evidence before the Tribunal of any other instances of non-compliance.

    ·     The time that has elapsed since the non-compliance

35. The applicant lodged his subclass 189 application on 10 March 2014, over 2 ½ years ago.

    ·     Any breaches of the law since the non-compliance and the seriousness of those breaches

36. There is no evidence before the Tribunal of any breach of the law since the non-compliance.

    ·     Any contribution made by the holder to the community.

37. The Tribunal acknowledges that the applicant is working and the Tribunal has taken this into consideration.

38. 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 has given 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. There is no information before the Tribunal indicating that the right any persons in Australia whose visa would, or may, be cancelled under section 140 of the Act in case of the applicant’s visa being cancelled.

39. The Tribunal appreciates and acknowledges that the visa cancellation is a serious outcome and would likely result in the applicant being subject to a section 48 bar preventing the grant of certain visa subclasses and an adverse migration history. However on balance and in consideration of the evidence as a whole, the Tribunal is satisfied that there are no circumstances in this case that would warrant the exercise of discretion in favour of the applicant.

40. 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

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

    Antoinette Younes
    Senior 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.