1603429 (Migration)

[2016] AATA 4545

1603429 (Migration) [2016] AATA 4545 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shan Huang
Mrs Qiong Lin
Miss Linshan Huang
Mr Jacky Sibo Huang

CASE NUMBER:  1603429

DIBP REFERENCE(S):  BCC2013/223536

MEMBER:Jennifer Ciantar

DATE:21 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.

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

Statement made on 21 October 2016 at 12:59pm

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 457 (Business (Long Stay)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.103 of the Act. 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 applicant appeared before the Tribunal on 2 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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.

   Did the notice comply with the requirements in s.107? 

9. The Tribunal has had regard to material on the Department’s file, including the s.107 notice, and 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 applicant was sent a s.107 notice on 14 January 2016. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 in the following respect.  

11. On the Subclass 457 visa application lodged on 7 December 2012, the applicant had stated he was awarded the qualification of Bachelor of Business Administration by Central China Normal University (Huazhong Normal University) following the completion of studies there from September 1998 to July 2002. With the visa application, the applicant had lodged a one page document in the Chinese language and a one page document purporting to be the English language translation which stated that the Chinese language document was the graduation certificate issued by Huazhong Normal University, signed by the President of University, Min Ma, and dated 1 July 2002. The English translation states:

    This is to certify that Shan Huang, male, born on 24 Septemebr 1980, has studied in Business Administration in Huazhong Normal University from Septmebr 1998 to July 2002, and completed the requirements as stipulated in 4 year undergraduate program satisfactory results and we hereby grant the graduation

12. However, the Department conducted checks and concluded that according to the official website of Huazhong Normal University, Min Ma became the president of the University in 2003. As the document purports to have been signed by Min Ma on 1 July 2002 when he was not President of the Huazhong Normal University Notice states that the Department reasonably suspects that the document purports to have been but was not issued to the applicant by  Huazhong Normal University and is therefore a bogus document.

13. On the basis of the above the applicant was issued with a s.107 notice which set out the grounds of cancellation, including that on the application form he stated that he had been awarded the qualification of Bachelor of Business Administration by Central China Normal University (Huazhong Normal University) after studying there from September 1998 to July 2002; and that he had provided bogus documents regarding his qualification, namely that he had a Bachelor of Business Administration from Central China Normal University (Huazhong Normal University).

    The applicant’s response to the s.107 notice

14. In response to this notice, on 20 January 2016, the applicant stated that the graduation certificate is genuine although he cannot explain the signature of Min Ma. However, he has emailed the University asking for proof of his graduation certificate. The applicant writes that Min Ma was the vice president of the University and became president in 2003. Prior to becoming President, he had overall charge and he took on the Principal duties. The applicant also writes that the University has six institutes; the applicant studied business administration as a major. Min Ma was the institute president and in 1999 he also served as vice president of the University. The applicant further writes that he has been trying to contact the University for proof but his teacher is retired and he requires additional time as it is Chinese New Year. However, no further information was provided by the applicant.

15. The applicant provided the Tribunal with copies of the original graduation certificate and translation. At hearing, the applicant stated that he completed secondary school in July 1998 and he commenced a Bachelor of Business Administration at University in the Hubei province in September 1998. The University is located some distance from where his family lives and this also has made it difficult for him to obtain additional documents. He studied business and administration, and his subjects included economics, the law of economics, statistics, organisation management, accounting theories, accounting management, maths and contemporary history of China. He completed the course in 2002 and has not undertaken any further studies. He then had an internship in a transport company in his home town and was later employed as an adviser in the same company. He then worked in a trade company where he had personnel management responsibilities.

16. The Tribunal discussed with the applicant his reasons why he has not provided any further documents in support of his claim that the graduation certificate is genuine and that he did complete a Bachelor of Business Administration. The Tribunal also indicated that it was surprising that the applicant has not made further efforts to provide additional information. The applicant stated that he had made some enquiries of the University to obtain further proof that he graduated with a Bachelor of Business Administration but his teachers have retired. The University had told him to check the particular website, which contained information about graduates but he has been unable to do so because he requires a Chinese cellphone to access the website, in order that an access fee can be deducted from the cellphone. The applicant stated that the only family he has in China are his parents who do not have the skills to access the Internet. He has been unable to contact the university by phone and his visa does not permit him to travel.

    S.359A invitation

17. On 18 August 2016 the Tribunal wrote to the applicant and the relevant part of the  letter is as follows:

    The particulars of the information are:

     The tribunal asked the department to conduct further checks about the authenticity of the graduation certificate you provided from Huazhong (Central China) Normal University. The Guangzhou Integrity unit of the department’s overseas Post has advised the tribunal that the official website of the Ministry of Education (Chsi.com.cn) provides verification of all university graduation certificates from 2002 onwards. This website has no record of your graduation certificate. The department attempted to ring the Deputy Chief QIU Baogus office number 027-67868060 from the official website of Huazhong Normal University but there was no answer and the Post did not proceed with further checks as it is the summer vacation. The Post states that the official website is a reliable third party for verifying the graduation certificate and therefore they are of the opinion that the graduation certificate you provided is fraudulent.

18. The applicant did not respond to the Tribunal’s invitation within the prescribed period. On 22 September 2016 the applicant wrote to the Tribunal and advised that when he tried to contact the University no one answered the phone. He believes he would have to go to the University in person but his visa does not permit him to travel.

    Consideration and Findings

19. The non-compliance set out in the s.107 notice relates to the documents provided by the applicant with the visa application, a graduation certificate in a Bachelor of Business Administration issued by Central China Normal University (Huazhong Normal University) and the translation. As set out in the delegate’s decision record, the applicant provided these documents with his visa application. The applicant also provided these documents to the Tribunal.

20. Section 103 requires that the applicant must not give, present, produce or provide to an officer, an authorised system, the Minister, 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. A ‘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.

21. The delegate’s decision record records that according to the official website of Huazhong Normal University, Min Ma became the president of the University in 2003 and therefore he was not President of the University on 1 July 2002 when the document purporting to be the graduation certificate issued to the applicant was signed. The applicant does not dispute that Min Ma became President of the University in 2003 and he has suggested that perhaps Min Ma signed the Graduation Certificate in his previous capacity. The Tribunal has considered the applicant’s evidence but the Tribunal gives more weight to the information that the official website of the Ministry of Education has no record of the applicant’s graduation certificate and that the document provided to the Department, which purports to be the Graduation Certificate, is signed by President Min Ma and dated 1 July 2002. However, Min Ma was not the President at this time and the Tribunal does not accept that Min Ma signed the certificate in his capacity as an Institute head or deputy Principal, as the document clearly states “President: Min Ma”.

22. On the basis of that evidence the Tribunal reasonably suspects that the Graduation Certificate purports to have been, but was not, issued by Huazhong Normal University, in respect of the applicant and is therefore a bogus document.

23. On the basis of these findings the Tribunal is satisfied there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

24. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

25. 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.

26. 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.

27. The Tribunal discussed the factors set out above, the relevant policy and the applicant’s circumstances, with the applicant at the hearing.

    The correct information

28. The Tribunal has considered the applicant’s oral evidence that he did graduate from Huazhong Normal University with a Bachelor of Business Administration but the Tribunal has not accepted this claim. The Tribunal finds that the applicant did not graduate from a Bachelor of Business Administration on 1 July 2002 from Huazhong Normal University. The Tribunal finds that the correct information is that the applicant did not graduate from a Bachelor of Business Administration on 1 July 2002 from  Huazhong Normal University as claimed. 

    The content of the genuine document (if any)

29. At the hearing the applicant gave evidence that the documents he has provided to the Department are genuine documents. However, given the above findings, the Tribunal is not satisfied that the applicant has provided genuine documents in relation to his claimed Graduation from Huazhong Normal University.

    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

30. The Tribunal is also of the view that the applicant submitted the bogus graduation certificate to improve his chances of being granted a Subclass 457 visa, which suggests to the Tribunal that the applicant might not have otherwise met the criteria for the grant of his visa.  The criteria for the grant of a Subclass 457 visa include the requirements in cl.457.223(4)(da) and (e) which require the decision maker to be satisfied that an applicant for a Subclass 457 visa has the skills, qualifications and employment background to perform the nominated occupation. The Tribunal is satisfied that the decision to grant the visa to the applicant was based, partly, on incorrect information and bogus documents relating to his claimed Graduation from Huazhong Normal University.

    The circumstances in which the non-compliance occurred

31. The applicant has denied that there was any non-compliance.

    The present circumstances of the visa holder

32. The applicant came to Australia in January 2013 and has now been living in Australia for more than 3.5 years. He stated that since arrival he has worked in a tile company, North Eastern projects, owned by a friend. He stated that he has never worked as a tiler and he is responsible for project administration and coordinating projects across a number of different construction sites. He assigns employees to different sites as there are often concurrent projects. He also allocates the materials required for different sites and checks the quality of the materials. The business has a varying number of employees depending on how many projects are on hand; and there might be 4 or 5 employees or up to 10 employees.

33. He has continued to be employed full-time at North Eastern Projects and after his visa was cancelled, his solicitor told him that he was still permitted to work. He does not know what visa he currently holds. His wife has worked as a baker for some years. They had planned that the applicant’s wife would apply for a Subclass 457 visa later in 2016 when the applicant’s subclass 457 visa was due to cease. The applicant stated that his wife’s employer is prepared to sponsor her and she has more English skills than does the applicant.

34. The applicant stated that it would be difficult for him and his wife and two children if they had to leave Australia because they have lived in Australia for some years, he and his wife are employed and have behaved honestly, and his children are settled in preschool and year two. The applicant stated that he does not know what his employment prospects would be if he returned to China as he has not lived there for some years although he has heard that the economy in China is not good. His wife resigned from her job before they came to Australia. He does not know if he would face any other difficulties in China as this would not become apparent until he returned. He has no family in Australia other than his immediate family. In China, he only has his parents and his wife only has her parents.

35. The Tribunal acknowledges the applicant’s evidence that financial and career opportunities are greater in Australia, and he and his wife might be economically disadvantaged while they re-establish themselves in China. The Tribunal gives this factor some 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

36. The applicant has maintained that he has not breached any obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

38. The bogus documents were provided with the 457 visa application that was granted on 21 December 2012, making the time that has elapsed since the non-compliance about 4 years.  The Tribunal does not consider 4 years to be a particularly long period.

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

1. There is no evidence before the Tribunal to suggest that the applicant has breaches of the law since the non-compliance.

   Any contribution made by the holder to the community.

2. At the hearing the applicant stated that he has not been involved in any community activities. The Tribunal accepts that the applicant and his wife have been employed in Australia and made a contribution to the economy in this way.

   Other considerations

3. Whilst the above 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.

4. When asked if there are any other reasons why he believes that his visa should not be cancelled, the applicant stated that he did complete the course and so he has not provided a bogus document, being the graduation certificate. Also, during their time in Australia he and his wife have been law-abiding citizens who are working and making a contribution. The Tribunal accepts that the applicant and his wife and children have settled in Australia and their employment prospects in China are uncertain. However, the Subclass 457 visa was a temporary visa which was due to cease in 2016 and the Tribunal is of the view that the applicant would therefore have given some consideration to the possibility that he and his family might have to return to China.

5. The applicant’s wife and children’s visas have been consequentially cancelled. The Tribunal is of the view that the applicant and his family would return to China as a family unit and so the cancellation would not cause the family members to be separated.

6. The Tribunal has considered the interests of the children and accepts that the applicant’s children might initially have some difficulties adapting to the Chinese education system and way of life but they are young and would have the care and support of their parents and extended family during what is likely to be a temporary period of adapting to a new education system and lifestyle.

7. The applicant has not claimed any fear of returning to his home country. The Tribunal is satisfied there is no evidence indicating any breach of international obligations.

8. When asked if there were any other circumstances he wished the Tribunal to consider, the applicant repeated that he still wants to live in Australia and the family is settled here. The Tribunal acknowledges the present circumstances of the applicant and his spouse, and that they are gainfully employed and have better financial and career prospects in Australia. However, the Tribunal is not satisfied that these circumstances, individually or cumulatively, outweigh the seriousness of the breach in this case. 

9. The Tribunal has taken into account all of the available evidence in this case.  It has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. In weighing up all of the evidence the Tribunal is of the view the breaches particularised in that notice are significant. It is not satisfied the applicant has adequately explained the non-compliance. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes it is the preferable decision that the visa should be cancelled.

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.

    DECISION

11. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Jennifer Ciantar
    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.