1509212 (Migration)

[2016] AATA 3023

1509212 (Migration) [2016] AATA 3023 (6 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Nguyet Ha Le
Miss Thi Phuong Linh Bui
Miss Thi Truc Giang Dinh
Miss Thi Truc Quynh Dinh

CASE NUMBER:  1509212

DIBP REFERENCE(S):  BCC2014/3498698

MEMBER:Glen Cranwell

DATE:6 January 2016

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 January 2016 at 10:58am

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 first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

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

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 6 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. 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.

8. 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.

9. 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?

10. 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 the following respects:

    ·The applicant indicated on her application form that her nominated occupation was accountant (general) and that she had a skills assessment from Certified Practising Accountants of Australia dated 22 November 2013.  The applicant also indicated on the visa application that she had undertaken an IELTS test on 4 May 2013 with a language ability of “superior”.  In fact, Certified Practising Accountants of Australia advised that there was no record of the applicant’s skills assessment.  Furthermore, checks undertaken by the Department indicated that there was no record that the applicant had ever undertaken an IELTS test.

11. The applicant made no claims at the hearing that she had a skills assessment in respect of the occupation of accountant (general) or had IELTS test results showing she had superior English skills. 

12. The applicant’s claim at the hearing was that she thought she was only obtaining advice on whether she qualified for the visa.  She did not think that an application would be lodged.  The Tribunal notes that this is at variance to the statutory declaration she provided to the Department, where she stated:

    The representative advised me that I am qualified to meet the criteria for the application for a permanent resident visa.  I had not been told what sort of category of visa …  I also was told that the visa application will be processed online.  They will on behalf of me do it, and I will not do anything, just waiting.  I of course agreed to pay an amount of money for this service.  I was waiting for the result.

13. The Tribunal has had regard to the reasoning in SZGJO v MIAC [2005] FMCA 1349 where the applicant was also arguing that he did not give authority to the agent to lodge the application on his behalf or to provide false information. The Court made the following observations at [39]ff:

    It is open to me to conclude that the applicant wanted a long term visa that carried with it work rights and was not too particular how he got it.  A protection visa application proved to be the preferred mechanism but the applicant showed little concern as to its contents.  His interest was in the outcome.  I find that the applicant was indifferent as to the content of the protection visa application.  His instructions to Mr Shiao were general.  He expected a protection visa application to be lodged on his behalf and he expected Mr Shiao to do everything necessary for that to occur.  That is what he paid for. ..

    The applicant asserts that the protection visa application is invalid, not only because he did not sign it, but because the content of it was in part false.  That may be so (I do not know) but, in my view, an applicant is just as responsible for a false application when he is indifferent as to its contents as where he has been found to be knowingly concerned with the making of a false application..

14. This was upheld on appeal ([2006] FCA 393). The Tribunal has also had regard to the comments in SZMME v MIAC [2009] FMCA 323. In that case the applicant conceded to having signed an application form for a visa but left the details to his migration agent. The Court found that the applicant made a valid application for the visa.

15. The Tribunal finds that the applicant instructed the former migration agent, through her landlord, to make a visa application on her behalf and agreed to pay a fee for the service.  The Tribunal found the applicant’s evidence that she was not aware that a visa application had been lodged to be unconvincing and inconsistent with her previous statutory declaration provided to the Department.  The Tribunal considers therefore that the applicant was responsible for the application and finds that it was validly made.  In circumstances caused the visa application form to be filled in on her behalf, she is taken to have done so herself: s.98 of the Act.

16. 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?

17. 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).

18. 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.

19. 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.

20. As noted above, the applicant was granted a Subclass 189 visa on the basis that she claimed to have met the relevant criteria, including having a particular skills assessment (as an accountant (general)) and a particular level of English (superior).  The correct information is that the applicant does not have a skills assessment and she has no evidence that she has any particular English language skills.

21. It is apparent that the decision to grant the visa was based on incorrect information supplied by (or on behalf of) the applicant.

22. At the hearing, the applicant gave evidence that she arrived in Australia with her 2 youngest children in January 2014.  She was on a guardian visa and the children were on student visas, all of which were valid until 2019.  She moved into a shared house at Inala.  The landlord told her that she could obtain a permanent residence visa.  The applicant had been an accountant in Vietnam, has a bachelor degree and ran her own business.  She asked if she was qualified for a permanent resident visa.  She did not know what subclass or type of visa, but was told she qualified for the visa.  She then provided passports, birth certificates, education qualifications and work references to her landlord.  She thought she needed an IELTS test, but her landlord told her she could submit that later.  She was told that if she got the visa, she would be required to pay $100,000.  She did not think $100,000 was a large sum of money, noting that she had previously paid $50,000 to investigate obtaining a visa to go to Canada.  She did concede that she had paid nowhere near $100,000 to obtain her guardian visa and the children’s student visas.  The applicant was surprised when she got the visa, but checked online and found that it was validly issued.

23. The Tribunal notes that the applicant’s submissions to the Department and her representative’s submissions to the Tribunal are that that the applicant was an unwitting victim of a fraud.  The Tribunal finds the applicant’s claims that she was an innocent victim of a fraud to be disingenuous.  The applicant gave evidence that she was aware that she did not have an IELTS test result.  She was asked to pay $100,000 for the visa, which is a very large sum of money far in excess of what she paid for previous Australian visas.  This stretches credulity.

24. The non-compliance took place in March 2014, which is less than 2 years ago.

25. The applicant and her 2 youngest children have been in Australia for approximately 2 years, and her oldest child has been in Australia for approximately 6 years.  Her oldest child has completed a bachelor degree at university and is intent on further study.  The middle child has completed primary school, and the youngest is in grade 5. She owns a house in Australia, and has sold her house and business in Vietnam.  The applicant undertakes casual work and is studying a diploma in accounting.

26. There is no information before the Tribunal that indicates that the applicant has otherwise failed to comply with migration law or Australian law generally. 

27. The applicant claimed to have contributed to the community through payment of tax on her income.  The Tribunal regards this contribution as trivial.

28. The applicant claimed that cancellation of her visa would cause hardship to her children.  It would disrupt their education.  They also have no house to return to in Vietnam.  As the Tribunal put to the applicant, cancellation of the visas would not cause the family to be separated, as the children would remain with the applicant.

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

30. In summary, the Tribunal considers the gravity of the breach of s.101 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 the applicant on the basis of concerted fraud.  The applicant claims that she was an innocent “victim”.  The Tribunal does not accept that the applicant’s claims about her circumstances outweigh the gravity of the breach.  While the applicant’s 2 younger children would have their education disrupted, the Tribunal does not consider that this disruption would be significant as they have only been in Australia for 2 years.  The oldest child has completed a bachelor degree, and any disruption in her case would be minimal.  While the applicant sold her house in Vietnam to purchase one in Australia, it appears to the Tribunal that she could just as easily sell her house in Australia to purchase a new home in Vietnam.  It remains the case that the applicant does not meet the criteria for the visa, and the Tribunal can see no reason to let her keep it.

31. 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

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

33. The Tribunal has no jurisdiction with respect to the other applicants.

    Glen Cranwell
    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.