2116584 (Migration)

[2022] AATA 4900

2116584 (Migration) [2022] AATA 4900 (6 October 2022)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  2116584

MEMBER:Noelle Hossen

DATE OF DECISION:  6 October 2022

DATE CORRIGENDUM

SIGNED:27 October 2022

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The name [incorrect name] referred to in paragraph 19 should be [correct name].

Noelle Hossen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2116584

MEMBER:Noelle Hossen

DATE:6 October 2022

PLACE OF DECISION:  Perth

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 October 2022 at 10:13am

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled – Independent – incorrect information in the visa application – bogus documents – identity details – previous application and travel to Australia – applicant deported from Australia – education and employment documents – periods of unlawful residence – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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

2. The delegate cancelled the visa on the basis that the applicant had not complied with Section 101(Visa Applications to be correct) and Section 103 (Bogus Documents not to be given). 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 the 4 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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. The Decision of the Delegate set out that: In support of the applicant’s application, he submitted a form 80 personal particulars for assessment including character assessment in which he provided the following answers regarding his family composition being:

   Father [Father A] born [DOB] residing in India

   Mother [Mother A] born [DOB] residing in India

   Brother [Brother B] born [DOB] residing in in Australia

   Sister [Sister A] born [DOB] residing in India.

9. The applicant had also submitted the following documents to the Department:

   Indian passport number [number 1] issued [in] 2013 comprised of photocopies of the biodata page and back page.

   Indian passport number [number 2] issued [in] 2013 for his wife comprised of photocopies of the biodata page and back page. Her father was recorded as being [Father B] and her mother is [Mother B].

   Marriage certificate signed by the Registrar of Marriages [in] June 2017 certifying that the applicant’s marriage to [Wife A] [in] September 2007. The applicant’s father’s name on the certificate is [Father A] and his mother [Mother A].

10. In support of the applicant’s education and employment claims he submitted documents namely:

    [Course 1] [programme] certificate issued by [College 1] Uttar Pradesh [in] July 2013 certifying he had been awarded the degree having passed the examination in 2013.

    Statement of marks for session 2011 for the [Course 1] [program] issued [in] July 2011.

    Experience certificate from [Employer 1] dated 7th of August 2014 for work as [an occupation 1] from 1 of March 2008 to the date of the letter

    11 salary slips for earnings for the period 2007 to 2017 as [an occupation 1] by [Employer 1]

    11 Forms No 16- Certificate under section 203 of the Income tax act 1961 for tax deducted at source on salary for work as [an occupation 1] for [Employer 1] for the period 1 April 2007 to 31 March 2017.

    Vetassess Skilled migration assessment for the nominated occupation of [occupation 1] issued [in] October 2014. The assessment notes take into account the Visa holder’s employment in India as [an occupation 1] for [Employer 1] from August 2009 to August 2014. The assessment states:

    Based on the evidence provided, more than three years of employment is assessed as highly relevant to the nominated occupation completed at an appropriate skill level in the five years before the date of applying for the skills assessment. The employment described above meets the minimum requirements for this occupation.

    Based on the information above the Skilled Independent Visa was granted.

11. The Department produced information in their decision indicating that those answers were incorrect. They also carried out a forensic facial image examination between the image of the applicant provided to the Department on 1 July 2017 in association with his health examination for his skilled Visa application, and a photograph of another person [Alias A] born [DOB].

12. The immigration history of [Alias A] was summarised as follows in the Delegate’s Decision:

    [November] 2008 he was granted a student visa

    [November] 2008 he arrived in Australia

    28 October 2010 applied for a second student Visa

    9 February 2011 his second student Visa was refused

    28 February 2011 he applied for a review through the migration review Tribunal

    21^st of May 2012 the migration review Tribunal affirmed the Department’s decision

    29 June 2012 he became an unlawful noncitizen

    [July] 2012 he voluntarily approached the Department and was issued several bridging E visas.

    2 November 2012 he requested permission to study which was denied

    15 November 2012 he was granted a Bridging E Visa requiring him to depart by 22 November 2012

    22 November 2012 he did not depart and he again became an unlawful noncitizen

    26 November 2012 he applied for [permanent] Visa. The application was deemed to be invalid as he did not provide any biometric information. No bridging Visa was granted in association with the application, and he remained unlawful. [In] May 2013 he was detained and removed from Australia

13. In support of his second student Visa application [Alias A] provided the following information in his application form and form 80 about his family members:

    Father [Father A] born [DOB] residing in India

    Mother [Mother A] born [DOB] residing in India

    Close relative [Brother B] residing in Australia

    Sister [Sister A] born [DOB] residing in India

    Wife [Wife A] born [DOB]

14. He also submitted supporting documentation which included an Indian passport, an extract from the Hindu marriage Registrar certifying his marriage [in] August 2010 and multiple educational documents issued in India under his name [Alias A] son of [Father A] and [Mother A].

15. The conclusion was that the persons depicted in these images represent the same individual.

16. At the hearing on 4 October 2022 the Tribunal asked the applicant whether the information contained in the decision of the Delegate of the Department was correct and he confirmed that this was the case.

17. 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?

18. 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 Section 101(b) and Section 103 of the Migration Act in the following respects:

    Section 101(b)

19. [Alias A] born [DOB] and [the applicant’s name] are the same person and the applicant provided incorrect answers in the “Visa holders skilled Independent Visa application.”  He provided incorrect answers because he was known by another name. He did not disclose that he had travelled to Australia previously and applied for a visa. He had changed his wife’s name, so she was known by another name, did not disclose that he resided in Australia from [November] 2008 to [May] 2013. He did not provide the correct answer to the question as to whether he had been deported from Australia, which he had under another name [in] May 2013. He also provided incorrect information under another identity regarding his employment history which could not be correct at the Visa holder was in Australia under another identity from [November] 2008 to [May] 2013. He also provided incorrect information as he had changed the birthdate of his father and the spelling of his mother’s surname.

    Section 103

20. The delegate of the Department also found that the education and employment documents applicant submitted with his skilled Visa application to be bogus documents as defined by section 5(1) of the Act as they were obtained because of false or misleading information. The applicant was in Australia from [November] 2008 to [May] 2013 so he could not have undertaken the study or work experience in India as claimed in these documents. The Delegate of the Department found that the documents that were bogus were as follows:

    [Course 1] program certificate

    Statement of marks for session 2011 for the [Course 1] program

    Experience Certificate from [Employer 1]

    11 salary slips for earnings for the period 2007 to 2017 as [an occupation 1] for [Employer 1].

    11 forms number 16- certificate under section 203 of the income tax act 1961 for tax deducted at source on salary for work as [an occupation 1] for [Employer 1] for the period 1 April 2007 to 31^st of March 2017.

21. At the hearing on the 4 October 2022 the Tribunal asked the applicant to confirm that the facts as contained in the Delegate’s Decision were correct and the applicant confirmed that the facts were correct.

22. For these reasons, the Tribunal finds that there was non-compliance with Section 101(b) and Section 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

23. 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).

24. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information:

25. The correct information as asserted in the Delegate’s Decision is that the applicant has been known by another name being [Alias A] born [DOB]. Prior to his arrival in Australia [in] December 2017 he had been to Australia before under this other identity. He held one student Visa and had another refused. When he appealed the refusal of his student Visa with the MRT the decision was affirmed. After being granted several Bridging visas he became unlawful and subsequently lodged a [permanent] Visa. [This] Visa application was invalid, and he remained as an unlawful citizen until he was detained and removed from Australia [in] May 2013.

26. The correct information is that the applicant did not complete a [Course 1] in India from 1 May 2010 to 30^th of April 2013 as he was in Australia at that time. He also did not work as [an occupation 1] for [Employer 1] in India from 1 March 2008 because he was in Australia at that time.

27. The correct information is different to the information provided by the applicant in his visa application.

28. At the hearing on 4 October 2022 the Tribunal asked the applicant whether the information and allegations contained in the decision of the delegate was correct and he agreed. The Tribunal places significant weight in favour of cancelling the Visa based on the evidence.

    ·     the content of the genuine document (if any)

29. As set out above the contents of the Documents provided by the applicant in support of his Application were assessed as being bogus and the applicant confirmed that the documents were bogus at the hearing and that the applicant did not submit genuine documents to consider.

30. The Tribunal places a lot of weight on those facts in favour of cancelling the visa.

    ·     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

31. The Decision to grant the Visa was based on bogus documents and the applicant confirmed at the hearing before the Tribunal that the following facts were correct that is:

    The applicant was known by another name and date of birth

    Been in Australia before under this identity

    Previously had visa applications refused

    Been an unlawful non- citizen

    Been issued a Bridging E Visa with a stipulated departure date with which he did not comply

    Been detained and removed from Australia

    Submitted multiple bogus documents as detailed.

32. The Tribunal places a lot of weight in favour of cancelling the Visa in respect of the factors set out in this paragraph.

    ·     the circumstances in which the non-compliance occurred

    The non-compliance occurred when the Visa holder provided incorrect information on bogus documentation in his skilled independent Visa application. The applicant deliberately and intentionally provided incorrect information in his Visa application. He applied for an Indian passport in another identity and provided incorrect information in his application.

    He submitted bogus employment documents to ensure his skills would be assessed as meeting the requirements necessary for the grant of his skilled independent Visa application. There is no information before the Tribunal to indicate this non-compliance occurred due to circumstances beyond the Visa holder’s control. The Tribunal therefore gives this consideration significant weight in favour of cancelling the Visa

    ·     the present circumstances of the visa holder

33. The applicant did provide information to the Tribunal about the fact that his son is attending school and is in [grade] in Australia. He advised the Tribunal that he would like to ensure that his son completes [grade] in Australia. He said that if he were to return to India it would be difficult for his son as he does not know the regional language. He has all his friends in Australia. He plays cricket and he is very fond of the game in Australia. He said that returning to India will have a very bad effect on him. He said in writing as follows:” We even believe that due to this change, he will not be able to study there and his life will be very hard there. He said his family reside in a small community in India with approximately [number] people and there are no facilities that would suit his son who is now used to living in Australia.

34. The Tribunal accepts that his family being his wife’s [children] will suffer some hardship by returning to India. The Tribunal places some weight against cancelling the Visa in respect of this consideration.

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

35. The delegate of the Department found that the applicant replied to the NO ICC but did not address the issue of non-compliance with section 101B and 103. However at the tribunal hearing the applicant did admit that he did the wrong thing. He said that he had to take some responsibility for what happened.

36. The Tribunal gives this consideration a little weight against cancelling the Visa.

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

37. The applicant had been an unlawful noncitizen in June 2012. He had been granted a Bridging Visa E on 15 November 2012 requiring him to depart by 22 November 2012 which he did not do. He became an unlawful citizen a second time and only departed Australia [in] May 2013 when he was detained and removed.

38. The Tribunal places significant weight on this consideration in favour of cancelling the Visa.

    ·     the time that has elapsed since the non-compliance

39. the non-compliance occurred when the applicant lodged his skilled independent Visa application on 16 June 2017 approximately five years ago. The period of time does not mitigate the nature of the applicant’s noncompliance and Tribunal places significant weight in favour of cancelling the Visa in respect of that consideration.

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

40. There is no evidence before the Tribunal to indicate the applicant has breached any laws since the non-compliance and the Tribunal places some weight against cancelling the Visa in respect of that consideration.

    ·     any contribution made by the holder to the community.

41. The Tribunal accepts the evidence of the applicant that he and his wife have registered with the Australian organ donor registered to donate their organs and have given blood to the Australian Red Cross on numerous occasions. The applicant and his wife also provided food for the Australian community during the pandemic and the Tribunal places some weight  on those facts against cancelling the Visa because of their contributions to the community.

42. While 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’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140:

43. The applicant’s wife and child’s secondary Skilled Independent Visa will be consequentially cancelled by operation of section 140(1) of the Act. They hold their visas on the basis that the applicant was the primary Visa holder.

44. The fact however that the applicant obtained his Visa by providing incorrect information and bogus documents allowing his wife and child to be granted visas which may not have been issued, had the Department been aware of their actual circumstances. The applicant’s family will have to leave as a family unit and therefore will not be separated because of the decision to cancel the applicant’s Visa. The Tribunal places some weight in favour of cancelling the Visa on those facts.

    if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

1. The applicant’s wife and child are citizens of India. There is no evidence before the Tribunal that cancelling the Visa will lead to the applicant or his family being removed in breach of Australia’s non-refoulement a obligations under the Refugees convention or in breach of Australia obligations under the Convention against torture and other cruel, inhumane or degrading treatment or punishment. The Tribunal is required to consider the effect on family members particular partners and children in Australia. This is particularly the case if the visas of family members would be cancelled by operation of law under section 1401.

2. This consideration applies to the applicant’s child [name and date of birth] who is currently in Australia.

3. The child was born in India and arrived in Australia aged [age] [in] December 2017. He has spent a majority of his life in his home country prior to travelling to Australia. The Tribunal accepts that he may have developed some cultural ties to Australia during his time in Australia. However, he may still maintain cultural and language ties to India.

4. The Tribunal was of the view that if  the applicant’s Visa is cancelled it will result in the consequential cancellation of the secondary visas of his wife and his [children]. All members of their family unit will be required to depart Australian and return to India. Therefore, cancelling the applicant’s Visa will not potentially result in the children being separated from either parent.

5. The Tribunal considers that the cancellation of the Visa will not adversely affect the interests of his minor child such as may be potentially be in contravention of Australia’s international obligations under the Convention on the rights of the child.

6. The Tribunal gives this consideration a little weight in favour of cancelling the Visa.

   whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

7. If the Visa is cancelled as a citizen of India the applicant will have to return to that country to mitigate the possibility of being placed in immigration detention.

8. The applicant will be subject to section 48 of the act preventing him from applying for further visas while in Australia. He may also be affected by the fact that he will be limited in the granting of a further temporary Visa for a specified period.

9. The Tribunal places some weight in favour of not cancelling the Visa.

10. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

11. 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

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

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

    Noelle Hossen
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    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.

    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.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.