1509496 (Migration)

[2015] AATA 3914

1509496 (Migration) [2015] AATA 3914 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pham Du Hoc Nguyen

CASE NUMBER:  1509496

DIBP REFERENCE(S):  BCC2014/3499067

MEMBER:Antoinette Younes

DATE:22 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 22 December 2015 at 4:53pm

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 in the visa application, the applicant provided incorrect answers. 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 14 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father. 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 Mr Andrew Luong.

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.

   Background leading to the cancellation

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).

10. In the delegate’s decision record provided by the applicant to the Tribunal, it is noted that on 13 March 2014, the applicant lodged an electronic application for a subclass 189 Skilled (Independent) visa. The application contains a number of questions but relevantly:

    ·The application asks on page 4 “does the applicant have suitable skills assessment from the relevant authority?” to which the applicant responded “yes”. In the application, the applicant indicated that the nominated occupation is Secondary School Teacher, that the assessing authority is the Australian Institute for Teaching and School Leadership (AITSL), that the date of the skills assessment is 18 February 2013, and that the reference/receipt number is 48592614.

    ·On page 6, the application asks the question “Has the applicant undertaken an English language test within the last 36 months?” to which the applicant responded “yes”. He also gave information on page 6 that the name of the test is IELTS, that the date of the test is 02 November 2013, the test reference number is 84628792, and that the language ability is Superior.

    ·The application has declarations with the warning that giving false or misleading information is a serious offence. The applicant declared “Yes” to “The applicants declare that they: have read and understood the information provided to them in this application. Had provided complete and correct information in every detail on this form, and any attachments to it.”

    ·Based on the information provided by the applicant in the visa application, he satisfied the criteria of the visa which he was granted on 14 March 2014. Subsequent to the grant, on 13 May 2015, AITSL advised that they had no record of the applicant’s skills assessment, that they had no record of the reference number he provided in the visa application, and that there was no record of the applicant’s name in their database. Checks undertaken by the Department with the IELTS Test Report Form Verification Service showed that there is no record of the visa holder undertaking an IELTS English test; the Verification Service was unable to locate any record of the reference number the applicant had provided in the visa application and there was no record of his name in their data base.

11. On 2 May of 2015, the Department sent to the applicant a notice of intention to consider cancellation of the visa. On 15 June 2015, the applicant’s adviser responded by email as follows:

    ·In about February 2014, the applicant’s father was contacted by a person known as Van Chanh Nguyen who indicated that he could guarantee the applicant permanent residency in Australia if he provided him with his passport, driver’s licence and police checks for Australia and Vietnam. This person was paid 100 million Vietnamese dong which is approximately AU$5500. An email was provided to the father for contact. The applicant did not complete or sign the application or any document. Subsequent to the grant, the applicant assumed that the visa was granted on the basis of his studies in Australia.

    ·In July 2014, the applicant’s sister was granted an Australian student visa and the applicant as her guardian. In about September 2014, the applicant’s family sold their property in Vietnam and committed a large sum of money to purchase a property in Australia where the applicant and his sister reside. In April 2015, the applicant passed the Australian Citizenship test.

    ·The applicant is a victim of sophisticated fraud. He has not technically provided any information to the Department that was incorrect and he only provided documents that were true and correct. The applicant would not know that he was getting involved in an application where false documents and/or information had been provided. The applicant believes that the grant of the visa was based on his course of study in Australia. The applicant had intended to apply for work sponsorship once his courses of study were completed and he would have undertaken the proper channels to ensure his residency in Australia.

    ·The cancellation of the applicant’s visa would have a detrimental impact on his ability to make a genuine and official application for residency based on the skills acquired through his studies in Australia. The applicant has a sponsor, namely D & J Marble and Granite. The applicant’s family have invested in a property in Australia subsequent to their disposal of major assets in Vietnam. The applicant does not want to return to Vietnam. He is a victim of deliberate fraud for which he and his family would suffer greatly if the applicant’s visa were to be cancelled.

12. In support of his application for review, the applicant provided the following:

    ·Certificate of Title in relation to a property showing the applicant’s name in the first schedule.

    ·Visa notification grant of the Skilled Independent subclass 189 visa.

    ·Statutory Declaration of the applicant’s father, dated 21 July 2015 essentially reiterating earlier claims that the father had met Van Canh Nguyen who stated that he could get the applicant an Australian visa for approximately AU$5500 and that the money was paid subsequent to the visa grant.

    ·Statutory Declaration of the applicant reiterating the claims that his father had met Van who was paid to obtain a visa for him. He stated that he did not sign any documents and subsequent to the grant he was “amazed that the application was granted so quickly….”  At the 2010, he completed a diploma of business and in 2011, he commenced a bachelor of business majoring in finance. He has one more subject to complete. When he saw the word “skilled” in relation to the subclass 189 visa grant, he assumed that he was granted permanent residency on the basis of him having completed the Diploma in Business. On the basis of him having permanent residency, he applied to be his sister’s guardian who is studying in Australia. His sister is in year 10 studying at the Georges River Grammar School. She would have to return to Vietnam if the Tribunal affirms the delegate’s cancellation decision. In August/September 2014, he purchased a house in Condell Park for $841,000 in the belief that he had permanent residency. His family had to sell land in Vietnam to fund the purchase. In April 2015, although he passed the Australian citizenship test, citizenship was refused on the basis of the cancellation of the subclass 189 visa. Had he not been granted the subclass 189 visa, he would have applied for another student visa. Had he known that the subclass 189 visa was improperly obtained, he would not have allowed the application to be made and risk possible deportation from Australia.

    Request for adjournment

13. On 9 November 2015, the Tribunal wrote to the applicant inviting him to the hearing scheduled on 14 December 2015. On 16 November 2015, the Tribunal received the response to the hearing invitation indicating that the applicant would be attending the hearing listed on 15 December 2015. However on Sunday, 13 December 2015 at 9:12 PM, the Tribunal received a request for an adjournment of the hearing listed in the morning, on the basis that a barrister has been briefed to appear for the applicant but the barrister is now unavailable due to a part heard matter.  The Tribunal considered the request for an adjournment but decided that in these circumstances, conduct of the hearing as scheduled was appropriate. At the beginning of the hearing the Tribunal explained to the applicant and his representative the reasons for not adjourning the hearing.

14. In the course of the hearing the applicant was represented by a legal practitioner and the Tribunal is satisfied that the applicant had a fair opportunity to put his case in full before the Tribunal.

    Was there non-compliance as described in the s.107 notice?

15. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record that led to the cancellation of the visa, as outlined at paragraph 10 of this decision. The applicant reiterated his claims that his father had contacted him by telephone in about February 2014 and told him to send by email the applicant’s passport, driver’s licence, and police checks for both Vietnam and Australia. He said he did not apply for the visa himself and did not know that incorrect information had been provided.

16. The applicant gave evidence that he came to Australia in 2006 on a student visa and that he completed years 10, 11, and 12 of his secondary schooling in Australia. The Tribunal asked the applicant who assisted him when he applied for the student visa which was granted in 2006 and he stated that he could not remember. In relation to the subsequent student visa, the applicant stated that he was helped by a firm called “IDP” to whom he did not pay any costs. The Tribunal asked the applicant if he has ever sought any advice since his arrival in 2006 in relation to permanent residence and the applicant stated that he never asked or made any enquiries about his options. The Tribunal asked him why he had not done so and he stated it was because at that time he was still studying. He said his intention to come to Australia was to study and consequently he did not seek any advice in relation to permanent residence.  The Tribunal indicated to the applicant that the Tribunal has difficulties accepting that for all those years, he did not seek any advice in relation to permanent residence yet suddenly he sent to his father copies of documents for a permanent residence application. He reiterated that his intention was to study in Australia.

17. The applicant’s father gave evidence confirming that he had paid money to a person by the name of Van whom the father paid the equivalent of approximately $5500. The Tribunal asked the applicant’s father about his work in Vietnam and he stated that in the last 4 to 5 years he has owned a successful hotel business and prior to that, he had a small business in construction. The Tribunal indicated to the applicant that it would consider further the weight that it would place on his father’s evidence and Statutory Declaration.

18. The Tribunal explained to the applicant that even if the Tribunal were to accept that he did not personally complete the visa application, as it was filled on his behalf, he was taken to have completed the application and consequently he was under an obligation to ensure that all information provided in the application is correct. The applicant continued to reiterate that he did not complete the application.

19. The Tribunal has carefully considered the explanations provided by the applicant and whilst the Tribunal accepts as plausible that the application was completed online by a person called Van, on the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant did not know that incorrect information was being provided on his behalf. The applicant is 24 years of age and he has been in Australia since 2006. The Tribunal finds it implausible that he has never sought advice in that period for permanent residence. The applicant is his 16-year-old sister’s ‘Guardian’ in Australia. He is a responsible adult and there is nothing before the Tribunal suggesting lack of capacity. In any event, pursuant to s.98 of the Act, the Tribunal finds that the applicant is taken to have completed the visa application for the subclass 189.

20. On the basis of the available information, the Tribunal is satisfied that the applicant knew that he was not entitled to the skilled subclass 189 visa and that he provided documents to a person by the name of Van knowingly that he was not entitled to the visa and that the only way he would be able to obtain a skilled 189 visa is by providing incorrect information relating to skills assessment and IELTS test. In essence and on the evidence before it, including the evidence as outlined at paragraph 10 of this decision, the Tribunal finds that when answering questions in relation to the skills assessment and IELTS test, the applicant provided incorrect answers. Therefore, 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?

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

23. The correct information is that the applicant has not had a suitable skills assessment from AITSL and that he has not undertaken an English language test within the last 36 months, contrary to his answers in the subclass 189 visa application.

    ·     The content of the genuine document (if any)

24. The Tribunal is not making a decision as to whether the applicant has complied with s.103 of the Act as this is not relevant.

    ·     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

25. The decision to grant the subclass 189 visa was based, wholly, or partly on the incorrect information that the applicant had provided in the application in relation to the skills assessment and the IELTS test.

26. The relevant regulations require that at the time of the invitation to apply for the visa, the relevant assessing authority had assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation (reg.189.212(1)(a)) and that the applicant had competent English (reg.189.213).

27. The Tribunal is satisfied and for the reasons explained that the applicant has provided incorrect answers in the visa application in order to demonstrate that he met those two criteria.

    ·     The circumstances in which the non-compliance occurred

28. The applicant has been in Australia on a number of student visas since 2006. He has maintained that he did not know that a person by the name of Van had applied for the application and that the applicant’s father had paid him the equivalent of AU$5500.

29. For the reasons explained above, the Tribunal does not accept that the applicant did not know that Van had provided incorrect information or that he could get a skilled visa on the basis of his studies in Australia. On the basis of the available information, the Tribunal is satisfied the applicant is not a victim of fraud as asserted.

    ·     The present circumstances of the visa holder

30. The applicant gave evidence that he has never worked in Australia and that he has been supported by his family. He stated that he is currently undertaking a bachelor of business degree at UTS which he intends to finish mid-2016.

31. The applicant’s adviser made submissions that it is important for the Tribunal to consider this matter in its cultural background; he stated that in the Vietnamese culture, the applicant relies on his parents are the support and they support him. The Tribunal appreciates the cultural element in this matter but the Tribunal is satisfied that those aspects do not explain the provision of incorrect information in a visa application.

32. The applicant lives with his 16-year-old sister at the home purchased by the father, using funds from the sale of assets in Vietnam. The applicant told the Tribunal that he is his sister’s Guardian. The applicant’s application for an Australian citizenship has been refused on the basis of the visa cancellation.

33. The Tribunal accepts that the family in Vietnam sold assets in order to purchase the property in Australia, but this is not a persuasive reason that could outweigh the seriousness of the breach. In any case, the property can be sold. In relation to the refusal of the citizenship as a result of the cancellation, the Tribunal acknowledges that this is a serious outcome, however it is consequential of the actions of the applicant who has provided incorrect information in order to obtain permanent residence, without which he would not have satisfied the requirements to be granted an Australian citizenship. The subclass 189 was obtained by fraud.

34. The Tribunal is aware that Australia has international obligations pursuant to the UN Convention on the Rights of the Child 1989 (CROC).  On balance, the Tribunal is satisfied that cancellation would not result in a breach under the CROC. Whilst the Tribunal appreciates that the applicant is his sister’s guardian and that if he were to be deported in case of the visa cancellation, this could have an adverse impact on her, such as, not finishing her secondary school studies in Australia and having to return to Vietnam. However, she has a student visa on her own right and for as long as she complies with the conditions of the visa, she could remain in Australia. Moreover, whilst the parents are currently visiting Australia, they live in Vietnam and consequently, the Tribunal is satisfied that if his sister has to return to Vietnam, she would be returning to her home and to her parents. The Tribunal appreciates that the interests of children are a primary consideration, however they are not the only consideration, or the only primary consideration. In essence and for the stated reasons, the Tribunal finds that the best interests of the applicant’s sister are not impacted by the cancellation of his visa.

1. The Tribunal has carefully considered the applicant’s circumstances and Australia’s obligations under the CROC, and the Tribunal is satisfied that weighed along with all other relevant matters, those factors do not mean a favourable exercise of discretion in this matter.

2. The Tribunal has carefully considered the applicant’s situation and current circumstances. The Tribunal considers the provision of incorrect information in an application for a visa to be serious, significant and goes to the core of the integrity of Australia’s migration program. The Tribunal does not consider the applicant’s own circumstances as outweighing other considerations.

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

3. The applicant responded to the notice of intention to consider cancellation.  He provided submissions to the Tribunal and attended the hearing. However he has continued to assert his innocence and to blame a third party.

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

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

   ·     The time that has elapsed since the non-compliance

5. The subclass 189 visa was granted on 14 March 2014. The Tribunal does not consider approximately 19 months to be a reason not to cancel the visa.

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

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

   ·     Any contribution made by the holder to the community

7. The applicant’s adviser noted that the applicant by purchasing a property in Australia has directly contributed financially to the Australian economy. The adviser further submitted that as the guardian of his sister, the applicant is also making a contribution.

8. The Tribunal acknowledges those contributions but does not find them to be persuasive reasons not to cancel the visa.

9. 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.

10. 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.

    Request for Ministerial intervention

11. In oral submissions to the Tribunal, the representative asked the Tribunal to make recommendations for Ministerial intervention, in case of an unfavourable review outcome.

12. Ministerial intervention is a non-reviewable and non-compellable discretionary power. It is up to the Minister to decide whether it is appropriate to intervene. Given the Tribunal’s findings, particularly in relation to the seriousness of the incorrect  information provided, the Tribunal has decided not to refer this matter to the Minister. The applicant has the option to make a request directly.

    DECISION

13. 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.