Chen (Migration) - [2020] AATA 2694

Chen (Migration) [2020] AATA 2694 (2 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Xianbo Chen
Mrs Shengyun Shi
Mr Shou Chen
Mr Zhaohong Chen
CASE NUMBER:  1710483
DIBP REFERENCE(S):  BCC2016/1804677
MEMBER:R. Skaros
DATE:2 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 02 June 2020 at 9:18am
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – English language proficiency – IELTS test report obtained using an imposter – bogus document – applicant’s knowledge and involvement – role of migration agent – consideration of discretion – limited efforts to check or verify information being provided – visa grant based on incorrect information – obligation to notify the Department of incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 100, 101, 103, 105, 107, 109, 111
Migration Regulations 1994 (Cth), r 2.41
CASES
MHA v CSH18 [2019] FCAFC 80
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The first named visa applicant (the applicant) was granted the Subclass 457 visa on 24 June 2014 for a period of four years. In April 2016, information was received by the Department which suggested that the IELTS test report relied on by the applicant in his Subclass 457 visa application was obtained using an imposter and that the applicant had not sat the IELTS test as claimed in the Subclass 457 visa application.
On 31 March 2017 the applicant was issued with a notice of intention to consider cancellation under s.109 of the Act (the notice). The notice set out the particulars of the possible non-compliance with s.101(b) and s.103 of the Act. The applicant’s representative responded to the notice by way of written submissions dated 24 April 2017.
On 11 May 2017 the delegate found that the applicant had not complied with s.101(b) and s.103 of the Act, and after considering the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations), decided that the visa should be cancelled. The applicant provided a copy of the delegate’s decision record with the application for review.
The applicant appeared before the Tribunal on 20 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.
The delegation issue and the Tribunal’s power
At the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen (Migration)

Details

AGLC: Chen (Migration) [2020] AATA 2694
Case: [2020] AATA 2694
Decision Date: 2 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered whether to affirm the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The cancellation was based on the applicant providing a bogus document, specifically an International English Language Testing System (IELTS) test report, which was obtained using an imposter. The applicant had relied on this document to satisfy English language proficiency requirements for both his initial visa application and a subsequent visa application.

The Tribunal was required to determine if the grounds for cancellation were made out and, if so, whether the visa should be cancelled. This involved assessing whether the applicant had failed to comply with sections 101(b) (providing correct information in a visa application) and 103 (not providing bogus documents) of the *Migration Act 1958* (Cth). The Tribunal also had to consider whether the notice issued under section 107 of the Act complied with its statutory requirements and whether the applicant's visa grant was based on incorrect information.

The Tribunal found that the notice issued under section 107 was valid and that the applicant had indeed failed to comply with the Act. It was established that the IELTS test report submitted by the applicant was fraudulent, having been obtained by an imposter, and therefore constituted a "bogus document" as defined by section 5(1) of the Act. The Tribunal applied the principle that an answer to a question is incorrect even if the applicant was unaware of the inaccuracy, and that providing a bogus document is a breach of the Act. The Tribunal concluded that the visa was granted based on this incorrect information and that the applicant had not demonstrated cause why the visa should not be cancelled.

The Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. 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. 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? The Tribunal has had regard to the notice dated 31 March 2017 that is on the Department’s file. The notice informed the applicant that his visa may be cancelled under s.109 of the Act on the basis that he appears to have not complied with s.101(b) and s.103 of the Act. The notice set out the particulars of the possible non-compliance and advised the applicant to respond in writing within a specified period. The notice also set out the effect of various sections of the Act, the applicant’s continued obligations under the Act and requested the applicant to keep the Minister informed of his address. 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? 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) (visa application to be correct) and s.103 (bogus documents not to be given) as follows:On 26/05/2014, you lodged an application for a Long Stay Temporary Business Visa, class UC subclass 457. Your application was assessed as having met all the relevant criteria and was granted on 24/06/2014.On page eight (8) of the application form you provided the following information:Page 8 Applicant language skillsIs English your first language?NoIf English is NOT your first language, have you undertaken an English test in the last 36 months? YesIf YES, give details of the most recent English testTest name IELTSTest reference number 13CN418311CHEX001GSpeaking 7.0Reading 6.0Writing 6.5Listening 6.5Test score / Overall band score 6.5As part of this application you submitted a document entitled International English Language Testing System (IELTS) Test Report Form dated 14/12/2013. The following details (not limited to) were recorded on this document:Centre Number CNO01Date: 14/12/2013Candidate Number: 418311Family Name: CHENFirst Name: Xian BoDOB: 20/03/1978Test reference number 13CN418311CHEX001GOn 30/03/2015, you applied for your partner Shengyun SHI (DOB: 02/05/1982) and two children; Zhaohong CHEN (DOB: 26/03/2006), and Shuo CHEN (DOB: 22/09/2009) as dependant applicants. The three family members were all granted dependant 457 visas on 29/04/2015, attached to your visa.On 13/08/2015, you lodged an application for a Regional Employer Nomination class RN subclass 187 Visa with this department. Within this application you provided the same IELTS document, Test reference number 13CN418311CHEX001G, attesting to your English language capabilities to supplement your application.In April 2016, this department received confirmation from the Chinese IELTS Security Officer in the British Council in Beijing that you had fraudulently obtained your IELTS results by using an imposter to undertake your IELTS test.

Decision

Reasons for decision

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 The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.R. SkarosSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

The Tribunal has no jurisdiction with respect to the other applicants.R. SkarosSenior MemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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‑complianceThe 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.