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

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 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. 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. 

3. 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.

4. 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.

5. 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.

6. 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

7. At the hearing, the Tribunal discussed with the applicant the Department’s advice, which he was informed of in writing by the Tribunal, that the delegate who made the decision to cancel his visa was not properly delegated. The Tribunal explained to applicant that this issue has been resolved by a judgement of the Full Federal Court in MHA v CSH18 [2019] FCAFC 80 (CSH18), in which the Court confirmed that the Tribunal has jurisdiction to review the decision made by the delegate to cancel his visa. The Tribunal explained to the applicant that, based on this judgement, it has the power conduct a merits review of the decision to cancel his visa and that in doing so, it can set aside or affirm the decision under review.

8. 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 visa applicants 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.

   Non-disclosure certificate under s.375A of the Act

9. The Department’s file included a certificate and notification issued on 1 June 2017 under s.375A of the Act (the certificate) which states that disclosure of the information contained in folios 1–16, 38 and 52 would be contrary to the public interest because: folios 1–16 refer to Departmental policies and procedures surrounding integrity risk and fraud, and folios 38 and 52 include inter-departmental correspondence highlighting policies and procedures. The Tribunal provided a copy of the certificate to the applicant and his representative prior to the hearing.

10. At the hearing, the Tribunal informed the applicant of its preliminary view on the validity of the certificate, and noted that it considered that the certificate was valid in-part, that is in respect of folios 1–16, as a valid public interest reason has been given for the non-disclosure of the information. The Tribunal noted that it had regard to the relevance of the information in folios 1-16 and has formed the view that the information relevant to his case, which refers to an imposter having sat the IELTS test relied on by him for the grant of the Subclass 457 visa, has been given to him by the Department as set out in the notice issued on 31 March 2017.

11. In relation to folios 38 and 52, the Tribunal notes that the documents, which include email correspondence between different sections of the Department about the decision taken to cancel the applicant’s visa, are merely described in the certificate and no valid public interest reason appears to have been given in the certificate as why disclosure of this information would be contrary to the public interest.

12. In response to an invitation to comment on the validity of the non-disclosure certificate, the applicant’s representative indicated at the end of the hearing that he had no comment to make on the issue and that he is satisfied that the applicant has been made aware of the existence of the certificate.    

13. 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

14. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

15. 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.

16. 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?

17. 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.

18. 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?

19. 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 skills

    Is English your first language?

    No

    If English is NOT your first language, have you undertaken an English test in the last 36 months? Yes

    If YES, give details of the most recent English test

    Test name IELTS

    Test reference number 13CN418311CHEX001G

    Speaking 7.0

    Reading 6.0

    Writing 6.5

    Listening 6.5

    Test score / Overall band score 6.5

    As 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 CNO01

    Date: 14/12/2013

    Candidate Number: 418311

    Family Name: CHEN

    First Name: Xian Bo

    DOB: 20/03/1978

    Test reference number 13CN418311CHEX001G

    On 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.

20. After considering the information received from the British Council in Beijing, the delegate concluded that the the applicant had not complied with s.101 of the Act as he had provided incorrect information about having undertaken an IELTS test on 14 December 2013. The delegate also concluded that the applicant had not complied with s.103 of the Act on the basis that the IELTS test report dated 14 December 2013 provided in support of the Subclass 457 visa is a bogus document.

21. In determining whether there was non-compliance as described in the notice, the Tribunal has had regard to the relevant evidence before it as follows. 

22. In the written response to the notice, the representative stated that the applicant applied for the Subclass 457visa through an agent to whom he paid RMB400,000. It was stated that all the applicant was asked to provide was his passport and residential information, and that the applicant had no knowledge of the information provided on his behalf in the application form. It was stated that the applicant has never seen the copy of the IELTS test report provided to the Department in support of the 457 visa and that the applicant only came to realise what the agent had done after receiving the Department’s notice. The representative submitted that s.99 of the Act should not apply to the applicant as he could not be deemed to have given, or caused to be given, the information and/or documents in relation to his 457 and other visa applications. It was submitted that the applicant is a victim of crime who has been cheated and misled by the agent who organised to provide incorrect information and a bogus document. It was noted that the applicant is considering legal action against the agent in Australia.

23. At the hearing, the Tribunal discussed with the applicant the information set out in the notice and invited the applicant to comment. In response, the applicant stated that he paid the migration agent to take care of everything and did not know what was provided in the visa application. When asked what documents he had given that agent, the applicant stated that he provided his passport, identification, qualification and resume. The Tribunal noted that in submissions to the Department, it was stated that he had only provided his passport and residential information to the agent and no mention had been made of any other documents. In response, the applicant stated that he informed his representative of the documents he provided to the agent and that this may have been missed in the response. The representative interjected stating that they were in a rush to respond to the Department’s notice and he may not have included all the details due to the pressure of time.  The Tribunal accepts the applicant and representative’s explanation regarding the discrepancy relating to what documents and/or information were provided to the agent who assisted the applicant with the Subclass 457 visa application.

24. The Tribunal expressed to the applicant that RMB400,000 was a large sum of money, to which he agreed, and asked the applicant whether he had made enquiries about the requirements of the work visa and whether he would qualify for such a visa before agreeing to pay such as large sum. In response, the applicant stated that he was informed by the agent that if he paid, he could get a visa to work overseas. He stated that he did not make enquiries of the agent about the requirements or check the application that was being lodged on his behalf because the agent informed him that everything would be taken care of. The applicant stated that the same agent had assisted other friends to obtain visas, so he trusted the agent.

25. The Tribunal explained to the applicant that he had engaged the agent to act on his behalf in relation to the Subclass 457 visa application and that under the provisions of the Migration Act, his visa may still be cancelled under s.109 of the Act whether or not he was aware that information provided on his behalf by the agent was incorrect.

26. The Tribunal put to the applicant that on the evidence before it, it appears that incorrect information about him having undertaken an English test has been provided in the visa application form and that a bogus document, namely the IELTS test report in respect of that test, had also been provided with the application. The Tribunal explained to the applicant that the evidence before it indicates that he has not complied with s.101(b) and s.103 of the Act as set out in the notice. In response, the applicant stated that he was in China and was not aware of Australia’s laws. He stated that if it was illegal, he would not have authorised the agent to do this.

27. The applicant in this case did not dispute the information set out in the notice indicating that an imposter, and not the applicant, had sat the IELTS test on 14 December 2013, and that details of that test were provided in the visa application form and that the corresponding IELTS test report (TRN 13CN418311CHEX001G) had been provided with the visa application.

28. The Tribunal has considered the representative’s submission that s.99 should not apply to the applicant as he had no knowledge of the information or documents that were provided with the Subclass 457 visa application and that he cannot be deemed to have given, or caused to be given, as it was the former agent who provided the incorrect information and/or bogus document. The Tribunal notes however that it is not necessary to establish that the applicant had knowledge that incorrect information or a bogus document had been provided by the agent for s.109 to be engaged. Section 98 of the Act states that if the applicant did not fill in his application form, he is taken to do so if he causes it to be filled in or if it is otherwise filled in on his behalf. In this case, the applicant engaged an agent, to whom he paid a large sum of money, to lodge on his behalf a work visa to Australia. Section 99 of the Act relevantly provides that any information that is given on an applicant’s behalf in relation to an application for a visa, as was done in this case, is taken, for the purposes of s.100 and s.101(b) to be in answer to a question. Section 100 provides that 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. Furthermore, s.111 of the Act states that cancellation provisions apply whether or not the non-­compliance was deliberate. Accordingly, the applicant’s claim to have had no knowledge of the information or documents provided, and that he would not have authorised the agent to do this had he known it was unlawful, does not assist the applicant in this case.

29. On the evidence before it, the Tribunal finds that the information given in the visa application form about the applicant having sat an IELTS test is incorrect. Accordingly, the applicant has not complied with s.101(b) as described in the notice. The Tribunal further finds that the IELTS test report provided with the application is a bogus document, as defined in s.5(a) of the Act, because the Tribunal reasonably suspects, on the evidence before it, that the document purports to have been, but was not, issued in respect of the applicant. Accordingly, the applicant has not complied with s.103 as described in the notice.

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

    Should the visa be cancelled?

31. 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).

32. 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

33. The correct information is that the applicant did not sit the IELTS test on 14 December 2013, in which the required scores were achieved to qualify for the Subclass 457 visa. When invited to comment on this, the applicant stated that he did not know anything about the incorrect information.

34. It is plausible that the applicant was not aware that incorrect information about him having undertaken an IELTS test had been provided in the visa application form. However, the Tribunal gives limited weight to this factor in the applicant’s favour because the applicant appears to have made limited efforts to check or verify the information being provided on his behalf. The applicant indicated that he paid the agent RMB400,000, which would have been approximately AU$80,000 when considering that the average exchange rate in 2014 was 1 AU$ to 5 RMB. The applicant agreed it was a large sum of money. The Tribunal acknowledges that the applicant had limited English language skills and may not have known Australia’s laws, however, given the large sum of money paid for the visa, the Tribunal expects that the applicant would have made more of an effort to check what information was being provided on his behalf. When this concern was put to the applicant at the hearing, he stated that he trusted the agent because the agent had successfully assisted others to obtain visas. The Tribunal considers it somewhat naïve of the applicant to have handed over a large sum of money to the agent, believing that this was all that was required to obtain a work visa for Australia, without at least making further enquiries about the requirements for the visa and whether he could satisfy those requirements.

1. The Tribunal considers that if the correct information had been known to Immigration, the applicant would not have been granted the Subclass 457 visa. The Tribunal gives weight to this consideration in favour of cancelling the visa.

   The content of the genuine document (if any)

2. The relevant document in this case is the IELTS test report in respect of the test undertaken on 14 December 2013. The results achieved in that test, as indicated on the report, were not achieved by the applicant, as he had not sat the test, but were achieved by an imposter. In commenting on this information, the applicant stated that he did not know about the bogus document.

3. It is plausible that the applicant was not aware that a bogus document had been provided with the visa application, however, as discussed above, the applicant appears to have made limited efforts to check or verify what information or documents had been provided on his behalf. The applicant appears to have blindly trusted the agent to ‘take care of everything’ without much probing.

4. The provision of a bogus document with the visa application resulted in the applicant being granted the Subclass 457 visa. The Tribunal considers that if Immigration had known that the scores in the IELTS test report were achieved by someone other than the applicant, they would not have granted the applicant the Subclass 457 visa. The Tribunal gives weight to this consideration 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

5. Subject to specified exemptions, the applicant would have had to demonstrate that he had the required level of English language proficiency to be granted the Subclass 457 visa. The Tribunal considers that the decision to grant the applicant the visa was based partly on the incorrect information provided in the application form about him having sat an IELTS test and the corresponding bogus document, namely the IELTS test report, indicating that the applicant had achieved the required scores. When invited to comment on this, the applicant stated that he is not in a position to respond as he was not aware of what occurred.

6. Later in the hearing, the representative relevantly submitted that the agent had not informed the applicant that he could qualify for the Subclass 457 visa by sitting the IELTS test or by seeking an exemption. It was submitted that if the applicant had been given the choice, he would have sought an exemption from the English requirement. The Tribunal acknowledges that the applicant may not have been fully informed by the agent about the requirements for the Subclass 457 visa and whether he could still qualify for the work visa without having to sit an English language test, but it also appears that the applicant himself made limited efforts, despite handing over a large sum of money, to make enquires of the agent about the requirements for a work visa to Australia. On his own evidence, the applicant paid the migration agent ‘to take care of everything’ and did not make any enquiries about what was provided in the visa application. In the circumstances, the Tribunal gives limited weight in the applicant’s favour to the submission that the applicant was not advised by the agent that the regulations provided for exemptions from the English language proficiency requirements.

7. In this case, it was claimed in the visa application that the applicant had undertaken an English language test and a corresponding IELTS test report was provided with the application as evidence of the applicant’s English language proficiency. As found above, this information was incorrect and the IELTS test report is a bogus document. The Tribunal finds that the decision to grant the applicant the Subclass 457 visa was, in part, based on the incorrect information and bogus document. In the exercise of its discretion, the Tribunal gives this factor significant weight in favour of cancelling the visa.

   The circumstances in which the non-compliance occurred

8. The non-compliance occurred when the application for the Subclass 457 visa was made.

9. When asked about the circumstances at the time of lodgement and when the applicant became aware of the non-compliance, the applicant stated that around that period of time he was in China and he was not aware that information or documents regarding an English test had been provided with the application.

10. As noted above, the Tribunal considers it plausible that the applicant was not aware that incorrect information and a bogus document had been provided by the agent acting on his behalf in relation to the Subclass 457 visa. However, the Tribunal considers that the applicant himself made limited efforts to query the agent about the requirements for a work visa and merely handed over a large sum of money for the agent to take care of things and obtain the work visa as he had done for the applicant’s friends.

11. While the Tribunal acknowledges that the applicant may not have been aware of the non-compliance at the time it occurred, the Tribunal does not consider the applicant’s conduct at the time of the non-compliance to be entirely blameless. The Tribunal gives limited weight to this consideration in the applicant’s favour.

    The present circumstances of the visa holder

12. When asked about his current circumstances, the applicant stated that his two children have returned to China for schooling and that he and his wife are currently working in Australia. He stated that his wife works at a food factory. He currently works as a welder.

13. The Tribunal noted that when he responded to the notice, which was some three years ago, he indicated that he had an outstanding debt for monies borrowed from friends to pay for the work visa. When asked about the status of that debt, the applicant stated that he has now paid it off. The applicant also stated that because his two children have returned to China he has to pay for their schooling and has to arrange a carer for them. He stated that his son has autism and requires additional training, which costs more.

14. The Tribunal acknowledges that the applicant and his spouse have been living and working in Australia and would like to continue to do so. It appears that the primary purpose of their continued stay in Australia, despite being separated from their children, is to work and provide for their children’s education, including their son’s additional training costs, and living expenses in China. The Tribunal gives some favourable weight to the applicant’s present circumstances. These circumstances, however, must be balanced against other circumstances to which the Tribunal must have regard.

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

15. At the hearing, the Tribunal asked the applicant about when he became aware that incorrect information and a bogus document had been provided with his Subclass 457 visa application. In response, the applicant stated that he found out when Immigration informed him. The Tribunal acknowledged that in the written submission to the Department, in response to the notice, it was claimed that he had only become aware of the bogus IELTS report and incorrect information after receiving the notice. The Tribunal raised with the applicant the concern that he may have been aware of the bogus IELTS report well before receiving the notice as he had relied on the same IELTS test report when applying for the permanent Employer Nomination visa, Subclass 187, which was lodged with the Department on 13 August 2015. The Tribunal noted, as set out in the delegate’s decision record, that when the Department wrote to him on 26 April 2016 in relation to the Subclass 187 visa application and invited him to comment on the unfavourable information they had received indicating that the IELTS test report provided with that application was a bogus document, he chose to withdraw that application.

16. In response, the applicant stated that the agent contacted him when he was in Australia and informed him that he could apply for the permanent residence visa. When asked if the agent who lodged the Subclass 187 visa on his behalf was the same agent that assisted him with the Subclass 457 visa, the applicant stated that it was the same person. The representative interjected stating that the applicant was referring to the same agency, but not the same person. The applicant then stated that it was the same agency.

17. In responding to the Tribunal’s concerns that he may have had knowledge about the bogus IELTS test report when the Department wrote to him in April 2016, the applicant stated that all the correspondence regarding the Subclass 187 visa was sent directly to the agency and that he was not aware of the content. In providing further details about the circumstances, the applicant stated that when he was in Australia the agency called him and informed him that, for a fee, they could apply for permanent residence for him. When asked about the circumstances of the withdrawal of the Subclass 187 visa, the applicant stated that the agency called him and told him that a problem had arisen with his application and that it must be withdrawn. The applicant stated that he signed documents, but they were all in English, and the agency did not inform him of why the application had to be withdrawn.

18. The Tribunal considers that if the applicant had become aware that incorrect information had been given with his Subclass 457 visa application, then he would have been obliged under s.105 of the Act to notify the Department in writing of the incorrectness and of the correct answer, notwithstanding the grant of the Subclass 457 visa. The applicant, however, claims that he did not become aware of the incorrect information in his Subclass 457 visa application form until he received the cancellation notice in respect of that visa. The applicant claims that the agency that acted for him in relation to the Subclass 187 visa had not informed him of the unfavourable information received from the Department in April 2016 relating to the IELTS test.

19. The Tribunal has some doubts about the applicant’s claim that he was not informed by the agency of the reasons for why his permanent residence visa application had to be withdrawn. The applicant indicated that he paid a fee for the permanent residency application and the Tribunal finds it somewhat difficult to accept that the applicant would not have queried the agency about the nature of the problem that arose which required him to withdraw the application. Though given it was the same agency that acted for the applicant in respect of the Subclass 457 visa, it is plausible that the applicant may not have been fully informed of the nature of the unfavourable information. In any case, it is not possible for the Tribunal to establish with any degree of certainty whether the agency had informed the applicant of the unfavourable information regarding the IELTS test. In the circumstances, the Tribunal makes no adverse findings in respect of the applicant’s subsequent behaviour concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act. In the exercise of its discretion, the Tribunal gives this consideration neutral weight.

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

20. The delegate’s decision record refers to another incident of non-compliance, namely the provision of the bogus IELTS test report with the application for the Employer Nomination visa, Subclass 187, which was lodged with the Department on 13 August 2015 and subsequently withdrawn. When invited to comment on this circumstance, the applicant indicated that he had no comments to make.

21. The Tribunal notes that the Subclass 187 visa application was subsequently withdrawn. The Tribunal has also had regard to the applicant’s claim that he was not aware that a bogus document, namely the IELTS test report, had been provided with the Subclass 187 visa application. In the circumstances, the Tribunal gives this consideration neutral weight.

    The time that has elapsed since the non-compliance

22. The Subclass 457 visa application, which included the incorrect information and bogus IELTS test report, was lodged six years ago. The Tribunal does not consider six years to be a long time, particularly in circumstances where the applicant has been in Australia as the holder of temporary visas and has become aware, at least since March 2017, when he was issued with the notice, that the Subclass 457 visa he held was obtained using incorrect information and a bogus document and is liable for cancellation. Accordingly, the Tribunal gives limited weight to this consideration in favour of the applicant.

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

23. In commenting on this circumstance, the applicant gave evidence that other than accidentally speeding, he has not breached any other Australian laws. There is nothing before the Tribunal which suggests that the applicant’s speeding incident, which is a traffic offence, was of a serious nature. The Tribunal gives limited weight to this consideration in favour of the applicant.

    Any contribution made by the holder to the community

24. The applicant gave evidence that he works, pays taxes and spends money in Australia on living expenses. The Tribunal gives some favourable weight to the contribution made by the applicant through his employment as a welder in Australia. In relation to paying taxes and spending money in Australia, the Tribunal notes that this is expected of all persons living and working in Australia and is not, in the Tribunal’s view, a contribution made by the applicant to the community.

25. While 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. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. The Tribunal has had regard to these considerations as follows.

26. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention.

27. The Tribunal notes that cancellation of the applicant’s visa would result in him being unlawful and subject to detention only in circumstances where the applicant does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by him ceases. The Tribunal acknowledges that due to COVID-19 travel restrictions, the applicant may not be able to depart Australia, however, the applicant would be able to apply for a bridging E visa which, if granted, would enable him to remain lawfully in Australia until such time he is able to depart. The Tribunal also notes that if the applicant’s visa is cancelled, he would be affected by s.48 of the Act and may not be able to make a valid application for a substantive visa in Australia unless permitted to do so by the Minister.

28. The Tribunal considers that the consequences of cancellation, as discussed above, are the intended consequences of the legislation and accordingly gives this consideration limited favourable weight in the exercise of its discretion.

29. The Tribunal has also considered whether there would be consequential cancellations under s.140. The Tribunal acknowledges that cancellation of the applicant’s Subclass 457 visa would result in the consequential cancellation of his spouse and children’s Subclass 457 visas. When asked at the hearing how the consequential cancellation would affect him and his family, the applicant stated that the cancellation of his children’s visa would not have much impact as they have already returned to China, but that if he and his spouse’s visas are cancelled they would not be able to work to support the family.

30. The Tribunal acknowledges that if the applicant’s visa is cancelled, he and his spouse may not be able to remain in Australia to work. The Tribunal notes, however, that the applicant and his spouse were only ever in Australia as holders of a temporary work visa which would have in any case ceased on 24 June 2018. Also, as explained to the applicant at the hearing, he had earlier given evidence that he was working in China and had provided evidence of his qualifications and experience in support of his Subclass 457 visa application. On this basis, the Tribunal considers that the applicant, given his qualifications and work experience in China and Australia, could seek employment in China to support his family.

31. When this was discussed with the applicant at the hearing, he stated that even though he may be able to get employment in China he has been in Australia for many years and has adapted to life in Australia. He stated that he has not maintained networks in China and that it would be difficult for him to find employment.

32. The Tribunal has considered the applicant’s evidence, however, as explained to him at the hearing, China is his home country, it is where he grew up, obtained his qualifications and where he had worked for some time before coming to Australia. The Tribunal acknowledges that the applicant and his spouse may experience some initial difficulties upon returning to China, however, the Tribunal considers that upon their return they would be able to reunite with their children and can re-establish themselves in their home country.

33. In relation to whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child, the Tribunal notes that the applicant’s children are currently living in China without their parents. If the applicant and his spouse return to China, the family could be reunited. The applicant has not indicated, and there is no information before the Tribunal, which suggests that the cancellation would result in Australia breaching its international obligations, including any non-refoulment obligations.

34. The Tribunal has also had regard to the representative’s submission, which was made in writing and orally at the hearing, that the applicant is a victim of organised crime which has affected many Chinese nationals. It was submitted that the applicant will pursue action against the agent, either in tort or by reporting the crime to the DPP.  

35. At the hearing, the Tribunal noted that the applicant has been on notice, at least since the issuing of the notice in March 2017, a period of some three years, that incorrect information and a bogus document had been provided with his Subclass 457 visa application. The Tribunal further noted in the response to the Department, in April 2017, it was claimed that the applicant was a victim of crime and is considering taking legal action, but there is no evidence before the Tribunal which indicates that the applicant has taken any civil or other action against the agent, or that the agent’s conduct has been reported to the police or the DPP. The Tribunal expressed its doubt that the applicant would take any action against the agent given he has not done so in the last three years. The Tribunal expressed its concern that, if the applicant genuinely believed that he had been defrauded and is a victim of crime then he would have taken some action against the agent and/or agency since finding out about the fraud, which he claims to have only become aware of in March 2017. In response, the applicant stated that he did not have much evidence on his own and that he and another person assisted by the same agent could combine their cases together. Neither the applicant nor the representative could inform the Tribunal whether the agent was a registered migration agent.

1. Whether the applicant decides to pursue an action or file a complaint against the former agent is a matter for the applicant. The Tribunal has limited evidence before it to make any conclusive findings on the conduct of the former agent and the applicant’s knowledge, or otherwise, of the agent’s alleged fraudulent conduct. As explained to the applicant at the hearing, his decision to pursue an action against the agent does not mean that the visa cannot be cancelled. The Act provides for cancellation of a visa where non-compliance has occurred, even if he had no knowledge of, or was not complicit in, the non-compliance.

2. In the exercise of its discretion, the Tribunal gives limited favourable weight to the claim that the applicant is a victim of crime. 

   Conclusion

3. The Tribunal has carefully considered and weighed up all the relevant circumstances in this case. While some of the circumstances weigh in favour of not cancelling the visa, the Tribunal considers that those circumstances are significantly outweighed by the circumstances in favour of cancelling the visa.

4. 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

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

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

   R. Skaros
   Senior 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.