1517296 (Migration)

[2016] AATA 4094

1517296 (Migration) [2016] AATA 4094 (6 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balwinderjit Kaur Sidhu
Mr Kashmir Singh Sidhu
Miss Gunit Kaur

CASE NUMBER:  1517296

DIBP REFERENCE(S):  BCC2014/2375474

MEMBER:Glen Cranwell

DATE:6 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

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

Statement made on 06 July 2016 at 1:59pm

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 first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. 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. 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 July 2016 to give evidence and present arguments. 

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.103 in the following respects:

    ·The applicant provided the Department with an IELTS test result form indicating that she sat for the test on 9 February 2012 and achieved an overall band score of 7.0.  The photograph on the test result form differed from the photograph on the online verification service.  IELTS advised the Department that the photographs are taken on the test day and should be identical, and any discrepancy suggested the test results form had been tampered with and that another person sat the test in the applicant’s place.

11. The applicant provided the Tribunal with the following statutory declaration:

    I attended an IELTS preparation program with Grey Matters in Chandigarh, India between 28 December 2011 and 17 January 2012.

    On 9 February 2012 I attended an IELTS examination with the British Council in Chandigarh at centre number IN 120. I sat and completed the general training exam and received the following results on my Test Report Form (TRF) dated 21 February 2012:

    Listening: 7.0

    Reading: 8.0

    Writing: 6.5

    Speaking: 7.0

    I achieved an Overall Band Score of 7.0 which gave me an English ability of Competent.

    On the basis of my IELTS score, I lodged a valid application for a Skilled Graduate (Temporary) visa subclass 485 on 5 April 2012 which was granted on 19 September 2013. On that application I provided my IELTS testing details and results and declared the information I had provided was complete, correct and up to date,

    On 14 November 2012 I lodged a valid application for a Regional Employer Nomination visa subclass 187 which was granted on 10 October 2013 which included the results of the IELTS testing I sat on 9 February 2012,

    On 10 September 2015 I received a Notice of Intention to Consider Cancellation (NOICC) from the Department of Immigration and Border Protection (DIBP). My previous agent at Migration Guru prepared a Response to the NOICC which was submitted to DIBP on 6 November 2015 stating that I had sat the test myself. It was also noted that my agent had repeatedly requested access to the IELTS document being relied upon, but this request was refused by the case officer.

    Following receipt of the Notification of Cancellation on 10 December 2015 I applied for review of the decision to cancel with the Migration Review Division of the Administrative Appeals Tribunal on 15 December 2015.

    I have attempted to contact Grey Matters in Chandigarh to access my student records and associated results to prove I was able to get the Competent English ability I achieved in my IELTS test on 9 February 2012. However, to date I have not been able to access any information from them.

    I have also attempted to contact British Council to access my IELTS results with no success. They have informed me that records are only held for two (2) years,

    I did not present the Department of Immigration and Border Protection with a bogus document or provide incorrect information on any of my visa applications,

    I have not been given the opportunity to review the evidence against me referred to and relied on by the Department of Immigration and Border Protection In their Notice of Intention to Consider Cancellation and the Notification of Cancellation.

12. Written submissions in similar terms were provided by the applicant’s representative on 5 July 2016, as well as a statutory declaration from one of the representative’s employees.

13. At the hearing, the Tribunal put the ground of application to the applicant as it appears in the delegate’s decision, a copy of which was provided to the Tribunal by the applicant.  The Tribunal explained that if it concluded that the test result form provided by the applicant to the Department was a bogus document, this would form a ground for cancelling her visa.

14. The applicant stated that she does not know what is going on.  She sat her IELTS test in India.  She did not send along someone else to do the exam.  She does not know why the photographs are different.

15. The Tribunal asked the applicant why photographs taken on the same day, being the test day, would appear to be different.  The applicant stated that no photograph was taken on the test day.  The only photograph ever provided to IELTS was provided when the test booking was made.  The Tribunal observed that, even if this were true, it would not explain why there were two different photographs.  The applicant indicated that she was not sure what was wrong.

16. The applicant stated that her brother-in-law booked the test and took her to the test.  Her brother-in-law is now deceased.

17. The Tribunal asked the applicant whether she had any evidence that indicates that she sat the test as claimed.  The applicant stated that she cannot prove anything, as IELTS did not keep any records from 3-4 years ago.

18. The applicant repeatedly invited the Tribunal to make inquiries to find out what occurred.  The Tribunal explained that the Department attempted to verify the test result form using the online verification service, and then made inquiries of IELTS when a discrepancy in the photographs was identified.  The Tribunal asked the applicant to specify what further inquiries she thought should be made.  The applicant was unable to identify any further inquiries.

19. The Tribunal acknowledges that the applicant was unable to examine and compare the different photographs herself, owing to the existence of a s.375A certificate placed by the Department over the relevant documents.  Nevertheless, it is clear to the Tribunal from the clothing worn by the females in each photograph that the photograph appearing on the test result form is a different photograph to that appearing on the online verification service. 

20. Given that the photographs are different, the question then becomes why are they different?  The applicant was unable to provide a convincing explanation for this.  The advice given to the Department by IELTS is that both the test result form and the online verification service contain a photograph taken on the test day.  The applicant gave evidence that no photograph was taken on the test day.  The applicant’s claim that no photograph was taken on the test day, which is contrary to the practice by IELTS of taking photographs of candidates on the test day, suggests a lack of firsthand knowledge by her which is consistent with the applicant not having attended the IELTS test.  Based on the advice given by IELTS, the difference in photographs is consistent with another person having sat the test in the applicant’s place.  In these circumstances, the Tribunal finds that the applicant caused her test results form to be tampered with in order to substitute a photograph of herself.  It follows that that IELTS test result form provided by the applicant to the Department was a bogus document within the meaning of s.5 of the Act. 

21. For these reasons, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

22. 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).

23. 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.

24. 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.

25. The Tribunal has found that the correct information is that the applicant had someone else sit the IELTS test for her.  The circumstances in which the non-compliance occurred was that the applicant was seeking to meet the English language criteria for a Subclass 485 visa.  The Subclass 485 visa would not have been granted had it been apparent at the time that someone else had sat the IELTS test in place of the applicant.  The non-compliance took place over 3 years ago.  The Tribunal is not aware of any other instances of non-compliance or any other breaches of the law.  The applicant was unable to identify any contribution she has made to the Australian community.

26. The applicant’s present circumstances are that she is unemployed due to having young children. She told the Tribunal that she arrived in Australia in 2008, and has completed a Certificate IV in Hospitality (Commercial Cookery), a Diploma of Hospitality Management, a Diploma of Management and an Advanced Diploma of Management.  She reported that she is currently depressed, and provided a record of a consultation with her general practitioner on 23 November 2015.  Her general practitioner referred her to a psychologist for counselling, but she had yet to attend her first appointment.  She expects to attend an appointment this week.  She is not on medication.  The applicant stated that her condition arose due to the visa cancellation.

27. The applicant stated that her husband, the second named applicant, works as a taxi driver.

28. The applicant stated that she has two children.  Gunit is 9 years of age.  Gunit visited Australia in 2010, and came to stay in 2012.  Gunit is currently in year 4 at school.  Gunit is being educated in English, but speaks Punjabi at home.  The applicant’s younger child is Navnit, aged 1.  Navnit is an Australian citizen.  The applicant stated that she would like her children to stay in Australia for a brighter future.  The family sold everything to come to Australia, and there is nothing left for them in India.

29. The representative’s submission addresses the best interests of the children as follows:

    Best Interests of the Child

    Balwinderjit, her husband Kashmir and daughter Gunit have resided in Australia since 2008. On 4 August 2014, Balwinderjit and Kashmir had a daughter, Navnit Kaur who is an Australian citizen.

    Cancellation policy states that circumstances may bring Australia's obligations as a signatory to the Convention on the Rights of the Child into consideration. Article 3 of the Convention provides:

    "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

    Under policy, the potential impact of a possible visa cancellation on any children in Australia who are under 18 is a primary consideration. If there are children in Australia whose interests could be affected by cancellation of a visa, or who themselves would be affected by consequential cancellation, then decision-makers have an obligation to treat as primary consideration the effect of cancellation on any such children.

    Balwinderjit's daughters, have been raised in Australia and we respectfully disagree with the assessment made by the DIBP case officer that the children would not face undue hardship readjusting to life back in India. Gunit is in the formative years of her education, within the Australian education system being currently enrolled in Eight Mile Plains State School.

    We refute the case officer's comments that Gunit Kaur would not face undue hardship if she was to return to India. Gunit has spent the majority of her short life here in Australia and having been immersed in the Australian education system has developed strong ties and links to life in Australia. It is unreasonable to make a finding that she will not be unduly affected by having to leave all that is familiar to her.

    We submit that it is likely that the family will find it difficult to assimilate back into life in India after such a substantial time in Australia. This will inevitably have a negative impact on the children, in particular the Australian citizen child who has never visited and/or resided in India. It is also unreasonable to assume that the parents will be able to find gainful employment on their return to India, having spent such a significant time abroad, simply because they were born in India.

    We note also, the Indian Government does not recognise dual citizenship and therefore we understand that Navnit would be required to apply for recognition as an Overseas Citizen of India (OCI) or revoke her Australian citizenship. Further, research indicates an OCI application may take up to eight to ten weeks to process, which would cause complications for the balance of the family who in the event of the DIBP decision being affirmed, would be required to depart Australia within 28 days from the date of decision.

    The impact of the cancellation of Balwinderjit's permanent resident visa would mean that the family will be forced to consider leaving Navnit in Australia with her maternal Aunt, as they believe strongly in Navnit's right to continue living in the country of which she is a natural citizen.

    We respectfully submit that it is in the best interests of the Australian citizen child to remain in Australia where she has full rights and recognition of a citizen, rather than force her to live in a country which does not acknowledge her fully as a citizen.

    We do not believe it is in the child or children's best interests to have the family fragmented at such a young age, and the family should not be compelled to revoke her Australian citizenship so that she can become a citizen of a country she has never resided in.

30. The Tribunal accepts that the applicant has resided in Australia for approximately 8 years.  It also accepts that the visa cancellation has caused her to become depressed, however the depression does not appear serious enough to warrant medication.  Seven months after being referred to a psychologist for counselling, the applicant has still not attended her first appointment although she claimed this was imminent.  There is no evidence before the Tribunal that the applicant is unfit to work as a result of her depression.

31. The Tribunal also acknowledges the force of the representative’s submission as outlined above.  However, the Tribunal considers that the children’s best interests are best met by remaining with both of their parents.  Their best interests could be met if they returned to India with their parents, even accepting that the parents would go through a significant readjustment in returning to India. The children’s situation contrasts with those where the children have one Australian citizen parent, such that cancellation of the other parent’s visa would result in the family being split.  In this case, both parents would have to return to India and there would be no such separation.  Gunit is able to speak Punjabi and would be able to continue her education in India without language barriers, and to the extent that she is able to speak English that would be an advantage to her.  Navnit is of a young age such that she could readily adapt to a different environment.  The Tribunal does not consider that an eight to ten week period for processing an application for recognition as an Overseas Citizen of India in respect of Navnit, which may necessitate a brief period of separation, is a sufficient basis not to cancel the applicant’s visa.

32. The Tribunal considers that the applicant in particular would be reasonably placed to provide appropriate care and opportunities for her children in India.  Although the representative claimed that the applicant would have difficulty finding a job in India, she has completed a number of qualifications in Australia, including a Certificate IV in Hospitality (Commercial Cookery), a Diploma of Hospitality Management, a Diploma of Management and an Advanced Diploma of Management.  The Tribunal considers that the applicant’s Australian qualifications would advantage the applicant in obtaining higher paid employment in India – presumably was the purpose for which the qualifications were obtained.  This would enable the applicant to provide for herself and her family, including being able to provide educational opportunities for her children.

1. While the Tribunal has regarded the best interests of the children as a primary consideration, the other factor which the Tribunal places considerable weight on is that it has found that the applicant had another person sit an IELTS test for her.  Had this brazen act of non-compliance been apparent before the Subclass 485 visa was granted, the visa would not have been granted.  The applicant has continued to give less than truthful evidence in relation to these matters, including at the hearing. 

2. 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

3. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

4. 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.

   103Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

   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.