CHEN (Migration)

[2019] AATA 5623

CHEN (Migration) [2019] AATA 5623 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr XINGUANG CHEN

CASE NUMBER:  1813544

DIBP REFERENCE(S):  BCC2018/639613

MEMBER:Joseph Lindsay

DATE:10 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 December 2019 at 2:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – incorrect information in visa application – bogus document – claimed bachelor’s degree from university in New Zealand, with certificate attached – integrity check by department showed no record of graduation on university’s database – no appearance by applicant at hearing – discretion to cancel visa – factors for and against cancellation – applicant claimed visa agent provided information and document – use of agent does not exempt applicant from requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1)(b), 98, 101(b), 103, 109(1), 111

Migration Regulations 1994 (Cth), r 2.41

CASE

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 applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. In his application, the application provided a copy of the Department’s decision dated 9 May 2018.  

3. The applicant was invited to have a hearing before the Tribunal on 10 December 2019 at 2:00pm. However, the applicant failed to appear for the hearing.

4. If the applicant had appeared at the hearing, the Tribunal would have had the opportunity to ask questions of the applicant. The Tribunal would have had the opportunity to ask the applicant why he claimed that he had completed a Bachelor of Business in Economics at the Auckland University of Technology when it appears that he has done no such thing.

5. The Tribunal would have had the opportunity to ask the applicant why he appeared to provide incorrect information to the Department in order to get a Subclass 500 (Student) Visa, despite the clear warning to him that giving false or misleading information is a serious offence and that if information is found to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

6. Accordingly, the Tribunal has decided to make a decision on the available evidence. 

7. 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

8. On 9 May 2018, the delegate decided to cancel the applicant’s student visa. In this decision the term “visa holder” and the term “applicant” are used to describe Mr Xinguang Chen.

9. Essentially, the delegate found that the applicant’s circumstances did not comply with sections 101(b) of the Act and, accordingly, cancelled the visa under s109 of the Act.

10. Section 101(b) of the Act states:

    101 Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that:

    …

    (b) no incorrect answers are given or provided.

11. Section 103 of the Act states:

    103 Bogus 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.

12. On 30 July 2017 the visa holder lodged an application for a Student (subclass 500) visa. In association with this visa application, he completed Form Application for a Student visa dated, 30 July 2017. This application form contained the following questions, in part:

13. On page 2 of Form Application for a Student visa under the heading “Primary Applicant” it asked “Passport details” the visa holder stated the following, in italics:

    Family name: Chen

    Given names: Xinguang

    Sex: Male

    Date of birth: 25 Sep 1995

    Passport number: E58397509

    Country of passport CHINA – CHN

    Nationality of passport holder: CHINA – CHN

    Date of issue: 21 Aug 2015

    Date of expiry: 20 Aug 2025

    Place of issue – China: FUJIAN

14. On page 7 of Form Application for a Student visa under the heading “Education” where it asked “Highest level of schooling” the visa holder stated the following, in italics:

    Highest level of schooling completed: Bachelor degree (including honours) or equivalent

    Course name: Bachelor of Business in Economics

    Institution name: Auckland University of Technology

    Country of institution: New Zealand

15. On page 8 of Form Application for a Student visa under the heading “Employment” where it asked “Employment history details” the visa holder stated the following, in italics:

    Employment status: Other

    Is this your current employment situation? Yes

    Give details: I am a recent graduate from AUT

    Date from: 18 May 2017

16. On page 14 of Form Application for a Student visa under the heading “Declaration” the visa holder answered “Yes” to the following:

    Warning:

    Giving false or misleading information is a serious offence.

    The applicants declare that they:

    “Have provided complete and correct information in every detail on this form, and on any attachments to it.”

    “Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.”

17. In association with this application the visa holder submitted a Bachelor of Business in Economics Certificate issued by Auckland University of Technology which included the following details:

    Name: Xinguang Chen

    Degree: Bachelor of Business in Economics

    Date of issue: 18 May 2017

18. Based on the information the visa holder provided in support of his Student visa application he was assessed as meeting all the requirements and was granted a Student visa on 4 August 2017.

19. Subsequent to the grant of his visa, the Department conducted integrity checks on the Bachelor of Business in Economics Certificate submitted in association with the visa holder’s Student visa application. Verification of this certificate using Auckland University of Technology’s database found no record of the visa holder graduating from this university.

20. Given the above information obtained from the integrity checks, it appears that the visa holder has provided incorrect answers and submitted a bogus document which is counterfeit or has been altered by a person who does not have authority to do so as per paragraph (b) of section 5(1) of the Act, in his application for a Student visa because he did not graduate from Auckland University of Technology.

21. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 101(b) of the Act where he gave incorrect answers on pages 7 and 8 of his student visa application as indicate above, where he indicated that he had completed a Bachelor of Business in Economics from Auckland University of Technology in New Zealand.

22. The Tribunal accepts the above information and finds that the applicant did not comply with subsection 103 of the Act where he provided a bogus document, that being the Bachelor of Business in Economics Certificate allegedly issued by Auckland University of Technology dated 18 May 2017. 

23. Accordingly, the Tribunal finds that visa holder did not comply with subsection 101(b) and section 103 of the Act when he applied for the Student visa on 30 July 2017.

24. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder (the applicant) 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.

25. 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.

26. 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?

27. 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.

28. The visa holder provided a response to the Notice of Intention to Consider Cancellation (the Notice) on 24 April 2018. The visa holder stated the following, in part:

    • That an Agent “Mr. Jian HE” was introduced to him through a friend in March 2017. He was told that the agent was experienced in dealing with Australian school enrolment applications and visa applications and he charges high services fees;

    • That he and his parents met the agent in person seeking advice regarding Australian school enrolment and student visa applications. He trusted the agent after initial consultation as he provided information and materials on Australian schools and explained the procedure of applying for the visa;

    • That the agent assured the student visa application was not difficult and it would be approved in a short timeframe according to his experiences;

    • That he paid high service fees to engage the agent and provided him with the following documents upon his request; 1) Copy of his passport; 2) Copy of Household register certificate; 3) Copy of his Chinese ID;

    • That during the whole process of his school enrolment and visa application, he did not provide any incorrect answers or bogus documents to the Department;

    • That he was unaware that the agent provided bogus documents to the Department.

29. Sections 98 and 111 of Subdivision C provide the following information:

    Section 98

    “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.”

    Section 111

    “To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.”

30. The Tribunal finds that engaging the assistance of an agent to lodge his Student visa application does not exempt the visa holder from the requirement to provide correct information and not provide a bogus document in association with his Student visa application. The visa holder has caused incorrect information to be given or provided on his behalf.

31. The Tribunal finds that the visa holder has not complied with section 101(b) of the Act because the Department completed integrity checks using the Auckland University of Technology database and found no record of the visa holder graduating from this university. Therefore the Tribunal finds that the visa holder has provided incorrect information or caused incorrect information to be provided regarding completing a Bachelor of Business in Economics at Auckland University of Technology in his application for a Student visa.

32. The Tribunal finds that the visa holder has not complied with Section 103 of the Act because he submitted a bogus document (the Bachelor of Business in Economics Certificate issued by Auckland University of Technology dated 18 May 2017) in support of his application.

33. The Tribunal finds that the Bachelor of Business in Economics Certificate issued by Auckland University of Technology dated 18 May 2017 is a bogus document, within the meaning provided at paragraph (b) of section 5(1) of the Act which states: “is counterfeit or has been altered by a person who does not have authority to do so” because the Department completed integrity checks using the Auckland University of Technology database and found no record of the visa holder graduating from this university.

34. Therefore the Tribunal finds that the visa holder has not complied with section(s) 101(b) and 103 of the Act and his Student visa is liable for cancellation consideration under section 109 of the Act.

35. Given the information before the Tribunal as indicated above, the Tribunal is satisfied that the applicant’s non-compliance was identified and particularised in the s.107 notice.

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

    Should the visa be cancelled?

37. 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).

38. 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 Migration Regulations 1994 (the Regulations). Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

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

    ·     any contribution made by the holder to the community.

39. 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.

40. The visa holder provided a response to the Notice on 24 April 2018. The visa holder provided the following reasons why his visa should not be cancelled:

    “My parents in China is seeking legal advice regarding Mr. He’s dishonest and deceptive behaviour. I have been always telling the truth and did not do anything wrong in the application, however, my life now has been seriously affected by Mr. He’s dishonesty and fraudulence.

    In conclusion, having regard to the above facts, I hope the decision-maker not to exercise the power to cancel my student visa.”

41. The Tribunal does not accept the applicant’s submission that he, in summary blamed an agent for providing false information and documentation to the Department. If the applicant had attended the hearing, the Tribunal would have had the opportunity to ask the applicant for further detail about his claim that he did not do anything wrong in regard to the application and that it was the actions of the agent that resulted in false information and documentation being provided to the Department. Accordingly, the Tribunal does not accept the applicant’s submissions that, in summary, it was the actions of the agent that resulted in false information and documentation being provided to the Department.

42. The Tribunal’s assessment of all the prescribed circumstances as set out in Regulation 2.41 is as follows:

    (a) the correct information

43. The correct information is that the visa holder did not graduate from Auckland University of Technology with a Bachelor of Business in Economics at any time - ever.

44. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (b) the content of the genuine document (if any)

45. As indicated above, the visa holder submitted the Bachelor of Business in Economics Certificate issued by Auckland University of Technology dated 18 May 2017.

46. The delegate’s decision indicates that the Department completed integrity checks using the Auckland University of Technology database and found no record of the visa holder graduating from this university.

47. Accordingly, as indicated above, the Tribunal finds that the applicant submitted a bogus document (the Bachelor of Business in Economics Certificate issued by Auckland University of Technology dated 18 May 2017), within the meaning provided at paragraph (b) of section 5(1) of the Act which states:

    “is counterfeit or has been altered by a person who does not have authority to do so”

48. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (c) 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

49. The Tribunal finds that the decision to grant the applicant a student visa was based partly on incorrect information and partly on the bogus document as described above. The Tribunal finds that the delegate relied upon the study history the applicant provided to form a decision that the applicant was a genuine temporary entrant and satisfied the English language requirements.

50. Accordingly, the Tribunal finds that this information would have helped form the delegate’s decision that the visa holder had the intention of continuing his education in Australia as a genuine temporary entrant and that he would not be required to complete any further English language requirements for the grant of the visa.

51. The Tribunal gives this consideration high weight against the applicant.

    (d) the circumstances in which the non-compliance occurred (reg. 2.41(d))

52. The circumstances in which the non-compliance occurred are described above.

53. In summary, the circumstances in which the non-compliance occurred are that the applicant intentionally gave the Department false information and a bogus document in order to obtain his student visa.

54. Accordingly, the Tribunal gives this consideration high weight against the applicant.

    (e) the present circumstances of the visa holder (reg. 2.41(e))

55. The visa holder is currently lawfully onshore as a holder of a Bridging Visa E. He does not have any accompanying dependents on the student visa.

56. Accordingly, the Tribunal gives no weight in the applicant's favour.

    (f) the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958 (reg. 2.41(f))

57. The applicant provided incorrect information and a bogus document in his application for a student visa in order to facilitate a favourable migration outcome.

58. There is no indication that the applicant made any effort to correct the incorrect information provided to the Department or the Tribunal, apart from indicating that it was the fault of someone else who arranged the student visa for him. If the applicant had attended the hearing, the Tribunal would have had the opportunity to ask him for a further explanation. 

59. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (g) any other instances of non-compliance by the visa holder known to the Minister (reg. 2.41(g))

60. There is no other information before the Tribunal indicating other instances of non-compliance.

61. Accordingly, the Tribunal gives this no weight in the applicant's favour.

    (h) the time that has elapsed since the non-compliance (reg. 2.41(h))

1. The non-compliance occurred when the visa holder applied for the student visa on 30 July 2017.

2. The time that has elapsed since the non-compliance is now some two and a half years.

3. The Tribunal finds that despite the time that has passed since the non-compliance occurred, the significance of the applicant’s deceptive behaviour is such that his behaviour represents a significant risk to the integrity to Australia’s migration system.

4. The Tribunal gives this consideration no weight in the applicant’s favour.

   (j) any breaches of the law since the non-compliance and the seriousness of those breaches (reg. 2.41(j))

5. There is no information before me to indicate that the visa holder has breached any laws since the non-compliance.

6. The Tribunal gives this consideration no weight in the applicant’s favour.

   (k) any contribution made by the holder to the community (reg. 2.41(k))

7. There is no specific information before the Tribunal to suggest the applicant has made a contribution to the Australian community. Accordingly, the Tribunal gives this no weight in the applicant's favour.

8. The Tribunal’s assessment includes the following other matters.

   • Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

9. There are no persons in Australia whose visas would, or may, be cancelled under s140 of the Act. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

   • Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

10. There is no information before the Tribunal to indicate the circumstances of this case are such that would engage Australia’s international obligations. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Whether there are mandatory legal consequences to a cancellation decision.

11. If the student visa is cancelled the applicant would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart.

12. In addition, the cancellation could also place a limitation under section 48 of the Act which means that the applicant will have limited options to apply for further visas in Australia.

13. In addition, the applicant will be prevented by a risk factor that may prevent him from being able to meet Public Interest Criterion 4013. As a result the applicant may not be able to be granted a further temporary visa for a period of three (3) years. Accordingly, the Tribunal gives this factor no weight in the applicant's favour.

    • Any other relevant matters.

14. There are no other relevant matters for the Tribunal to consider.

15. The Tribunal finds the applicant’s actions in this situation to give foundation to the Tribunal’s finding that the applicant has no regard whatsoever for Australian migration laws and he is prepared to engaged in deceptive behaviour to achieve a favourable migration outcome. Accordingly, the Tribunal gives this consideration high weight against the applicant.

16. 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

17. Having decided that under s108 of the Act that there was non-compliance in the way described in the notice issued under s.107 of the Act and having considered all the prescribed matters set out in regulation 2.41 of the Regulations, I find the reasons to cancel the visa outweigh the reasons not to cancel.  

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay

    
    

    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.

    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.