1508727 (Migration)

[2015] AATA 3852

1508727 (Migration) [2015] AATA 3852 (7 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI YEN NHI LE

CASE NUMBER:  1508727

DIBP REFERENCE(S):  BCC2014/3498532

SENIOR MEMBER:  Antoinette Younes

DATE:7 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 07 December 2015 at 3:59pm

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 provided incorrect information 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 19 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. The applicant was represented in relation to the review by her registered migration agent, Mr Sam Nguyen.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failsed 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.

6. 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.

7. 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?

8. 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).

9. In the decision record provided by the applicant in support of the application for review, it is noted that:

   a.On 26 December 2013, the applicant lodged an application for a subclass 189 Skilled (Independent) visa via the Department’s online facilities. As part of the application, the applicant completed the electronic “Application for Points Based Skilled Migration Visa” form which contains a number of questions.

   b.In response to the question “Does the applicant have suitable skills assessment from the relevant assessing authority?”, the applicant responded “Yes”.  The applicant provided further information in relation to the skills assessment of the application. Specifically she indicated that her Nominated Occupation is Medical Diagnostic Radiographer, that the assessing authority is the Australian Institute of Radiography, that the date of the skills assessment is 01 April 2013, and that the reference/receipt number for the skills assessment is 326486643.

   c.In response to the question “Has the applicant undertaken and English language test within the last 36 months?” on page 6 of the application form, the applicant stated “yes”. The applicant provided further information about the English language test at page 6 of the application form. Specifically, she stated that the name of the test is IELTS, the date of the test is 06 April 2013, the test reference number is 951864US, and that the language ability is Superior.

   d.Based on the information the applicant provided in her application for the visa, she was found to satisfy the criteria for the visa which she was granted on 30 December 2013.

   e.Subsequently and on 7 May 2015, the Australian Institute of Radiographer advised the department that they had no record of the applicant’s skills assessment, that they had no record of the reference number she provided in the application, and no record of her name in the database.

   f.The Department undertook checks with the IELTS Test Report Form Verification Service which revealed that there is no record of the applicant undertaking an IELTS English test. The service was unable to locate any record of the reference number which the applicant in the application for the visa and there was no record of her name in the database.

10. In response to the notice of intention to consider cancellation, the applicant provided a Statutory Declaration of 16 June 2015. In essence, the applicant provided information about her family and education background and stated that “I admit that at the time I applied for my current visa I was assisted by a child’s father, Phong. I had very little knowledge of Australian migration law. I admit that I did not know the legal requirements of subclass 189 Skilled (Independent) visa at the time I lodged my application and I only came to this knowledge recently when I consulted my migration agent. I concede that upon knowing the requirements of the subclass 189 skilled (Independent) visa I understand that I have not met the requirements of the visa”

11. In the course of the hearing, the Tribunal discussed with the applicant the information that led to the cancellation of the visa. The applicant stated that her visa application was handled by an agent and she later discovered that the information provided was incorrect. The Tribunal indicated to the applicant that in the statutory declaration of 16 June 2015, she had stated that the father of her daughter had assisted her in completing the visa application. She stated that she was confused and reiterated that it was an agent in Vietnam.

12. The Tribunal has considered the applicant’s explanations but finds them unconvincing and unpersuasive. On the basis of the available information, the Tribunal finds that the applicant provided incorrect information in relation to questions contained in the visa application regarding skills assessment and IELTS. In essence, the Tribunal finds that the applicant did not have a skills assessment from the Australian Institute of Radiographer, that the Institute had no record of the reference number she provided in the application, and no record of her name in the database. Further, the Tribunal finds that contrary to her responses to questions in the application, there is no record of the applicant undertaking an IELTS test.

13. 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?

14. 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).

15. 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

16. The correct information is that the visa holder did not have a relevant skills assessment from the Australian Institute of Radiography and that she had not undertaken an IELTS test within the last 36 months, contrary to her responses in the visa application.

    ·     The content of the genuine document (if any)

17. There is no evidence of any relevant genuine document.

    ·     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

18. The decision to grant the applicant the subclass 189 Skilled (Independent) was based, wholly, or partly on the incorrect information the applicant had provided in relation to the skills assessment and the IELTS. The Tribunal is satisfied that r.189.212(1)(a) and 189.213 require at the time of invitation to apply for the visa, that the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation and that the applicant has competent English. The applicant did not have the skills assessment or competent English at the relevant time and she would not have been granted the visa but for the incorrect information she provided. The applicant provided incorrect answers in her visa application in order to demonstrate that she met those two criteria.

    ·The circumstances in which the non-compliance occurred

19. The applicant applied for the visa on 26 December 2013 and she was granted the visa on 30 December 2013. She arrived in Australia on one April 2014 as the holder of the subclass 189 visa.

    ·The present circumstances of the visa holder

20. In the course of the hearing, the applicant advised the Tribunal that she is in a relationship with the father of her child who was born in Australia on 26 December 2014. The father is an Australian citizen and therefore, the daughter is an Australian citizen. Subsequent to the hearing and upon request from the Tribunal, the applicant provided copies of the child’s Australian passport, the father’s Australian passport, and the daughter’s birth certificate. On the basis of the available information, the Tribunal is satisfied that the applicant’s 11 months old daughter is an Australian citizen because her father is an Australian citizen.

21. The Tribunal received extensive submissions relating to Australia’s obligations under the Convention on the Rights of the Child (CROC). Australia is a signatory to the Convention and has consequential obligations. Relevantly a number of Articles of the CROC refer to the rights to preserve identity, nationality, family relations, and enjoyment of the highest standards of health. Whilst the Tribunal has serious doubts about the relationship between the applicant and the father of the child, the Tribunal accepts that it is not in the interest of the child for her to be separated from her father if the mother were forced to return to Vietnam. The applicant’s behaviour in providing incorrect information is serious and significant, however, the child is an innocent person and she is entitled to have access to the father who is an Australian citizen, access to the Australian culture, access to her Australian citizenship which would be lost if she adopts a Vietnamese citizenship as Vietnam does not allow dual citizenship[1]. The Tribunal accepts the submissions that the child may face difficulties in obtaining household registration in Vietnam and that such difficulties mean that she could face significant restrictions in terms of access to education and other services.

    [1] Article 4 of the Law on Vietnamese nationality indicates that the Vietnamese citizens have singled nationality and unless the laws of Vietnam otherwise provide for it, in Vietnam does not accept dual citizenship.

22. The Tribunal acknowledges that the child is very young and whilst she has not developed cultural identity or language skills, having to return to Vietnam would mean that potentially she could lose her Australian identity and the opportunity to learn the Australian culture.

23. On the basis of the available information, the Tribunal is satisfied that the decision to cancel the applicant’s visa would be in breach of the CROC and that it is in the best interest of the child to remain in Australia. The Tribunal accepts that the interest of the child is a primary consideration and that it is not the only consideration.  However, the Tribunal is satisfied that in this instance, it is appropriate to give it considerable weight.

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

24. The applicant responded to the notice of intention to consider cancellation. However she has continued to assert that she was not responsible, which the Tribunal does not accept. As the visa applicant, she has the responsibility to ensure that information provided in the application for the visa is correct.

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

25. There is no evidence before the Tribunal of any other instances of non-compliance by the applicant.

    ·The time that has elapsed since the non-compliance

26. The subclass 189 visa was granted on 30 December 2013, approximately 2 years ago.

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

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

    ·any contribution made by the holder to the community.

28. There is no information before the Tribunal of contributions made by the applicant to the Australian community.

29. 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.

30. The Tribunal is satisfied that the applicant’s conduct in providing incorrect information is serious and significant. Her conduct also reflects a level of disrespect for the law and the integrity of Australia’s migration program. The Tribunal is critical of the applicant’s continued lack of acceptance of responsibility. The Tribunal has not found her explanations to be convincing or persuasive.

31. The Tribunal notes that the delegate had acknowledged that a decision to cancel the applicant’s visa would be in breach of the CROC but did not find the child’s interests outweighed the seriousness of the non-compliance in this case. The Tribunal accepts that the applicant’s conduct in relation to the non-compliance is serious and the Tribunal does not wish to underestimate its importance, however the Tribunal is satisfied that the primary interests of the child outweigh the reasons to cancel the applicant’s visa.

32. 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 not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not 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.