Feng (Migration)

Feng (Migration) [2021] AATA 783 (16 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Huicheng Feng
Mrs Cuifang Song
Mr Jiawei Feng
Miss Xinyuan Feng
CASE NUMBER:  1935462
HOME AFFAIRS REFERENCE(S):          BCC2017/4876922
MEMBER:Bridget Cullen
DATE:16 February 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 16 February 2021 at 2.44pm
CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – incorrect information in the visa application – bogus document – English language requirements – IELTS test undertaken by another person – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 140
Migration Regulations 1994, r 2.41; Schedule 2, cl 187.232
CASES
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 Home Affairs to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect answers and bogus documents to the Department when applying for the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants appeared before the Tribunal on 10 February 2021 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 required full interpretation.
The applicants were represented in relation to the review by their registered migration agent, Mr Herbert He, of H2 Migration & Investment Pty Ltd (MARN 1278448). The representative attended the Tribunal hearing.
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
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.
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.
s.375A Certificate
At the commencement of the hearing, the Tribunal put the applicant on notice of a certificate issued by the Department of Home Affairs. The Tribunal explained that the certificate related to the substance of matters already known to him – that is, the allegation that the IELTS Certificate provided by him to the Department was not genuine The Tribunal offered the opportunity to provide submissions or comment on the validity of the certificate. The applicant, through his representative, chose not to do so.
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 – Visa applications to be correct, by way of incorrect answers being given or provided to the Department. The applicant was also found to be non-compliant with s.103 of the Act, which requires that bogus documents not be given.
The Delegate, in their decision record, identified that when the visa holder applied for their RSMS visa on 12 January 2015, they provided an IELTS certificate for a test undertaken on 18 May 2013. The score on this test was 6.5, with a minimum score of 5.5, considered to be ‘Vocational English’. As a result of this IELTS test, the applicant met the English requirement of their application, and this formed part of the basis for the grant of the visa on 20 March 2015.
The Department was advised by the British Council (IELTS) Beijing on 20 April 2016 that the IELTS certificate that was provided by the applicant was not genuine, as he both never undertook the test, and further, that the test was undertaken by an impostor.
It both followed that as a result of the applicant not sitting the test, and having someone else sit the test, that the applicant provided an incorrect answer (that he met the English requirement), and provided a bogus document (in that someone else sat their test, leading to the IELTS certificate being non-genuine).
The Delegate’s decision in relation to the non-compliance, is not in dispute by the applicant. Both the applicant upon receipt of the NOICC, and the representative’s submissions provided to the Tribunal, agree there is non-compliance. The Tribunal also agrees that there is non-compliance, and therefore does not consider it necessary to consider whether there was non-compliance further.
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?
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).
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.
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.
The correct information
The Tribunal is satisfied that the correct information is that the applicant did not sit an IELTS test on 18 May 2013 and therefore did not obtain the scores listed in the test report issued in his name on 18 May 2013. In the absence of any information that he had demonstrated that he had competent English through sitting another English test, or that he was exempt from having to do so, the Tribunal finds that the applicant did not have English at the time that he made his visa application on 12 January 2015.
The applicant was unable to communicate with the Tribunal in English, and at the hearing, gave evidence that he speaks Mandarin only.
The Tribunal is therefore satisfied that the applicant would not have satisfied the applicable English language requirements at the time he made his visa application on 12 January 2015, had the correct information been taken into account. The Tribunal gives significant weight to this factor as a factor that weighs strongly in favour of cancellation of the applicant's visa.
The content of the genuine document (if any)
The Tribunal has found that the IELTS test result form purportedly issued to the applicant on 18 May 2013 is in fact a bogus document. The applicant concedes that the document was bogus, and apologies for his conduct. The Tribunal further finds that there is no evidence of the applicant having undertaken any other English test demonstrating that he had competent English prior to making his visa application.
Accordingly, the Tribunal finds that there is no 'genuine' document in this case to be considered. The Tribunal gives no weight to this factor in its consideration of whether the visa should be cancelled or not.
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 Tribunal finds that it was a requirement in cl.187.232 that the applicant have competent English at the time that he made his visa application (or to be exempt from having to do so). There is no evidence before the Tribunal to indicate that the applicant was exempt and it is satisfied that he therefore had to demonstrate that he had competent English at the time that he made her visa application on 12 January 2015, and that he did so by submitting the IELTS test report form purportedly issued in his name on 18 May 2013.
The Tribunal has found that this IELTS test report form was a bogus document, and the applicant himself concedes that the test was undertaken by someone other himself, despite the test report form purportedly being issued to the applicant.
As noted above, the Tribunal is satisfied that the decision to grant the applicant a subclass 187 visa was based at least partly on the incorrect information he provided in his visa application to assert that he had competent English for the purposes of cl.187.232, and the bogus document (the IELTS test result form issued on 18 May 2013) he provided to support this claim. The Tribunal considers this a significant factor weighing in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The Tribunal is satisfied that the applicant chose to use an imposter to sit the IELTS test on his behalf at the Shenyang Test Centre on 18 May 2013, and that he also incorrectly advised the Department in his visa application that he sat an IELTS test there on 18 May 2013 and obtained the scores listed in that test report form. The Tribunal is satisfied that the applicant deliberately chose to undertake this course of action in order to obtain a permanent residence visa to which he would otherwise not have been entitled. The Tribunal considers this a significant factor weighing in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant, his wife, and children (a son born in 1998, and a daughter born in 2008) would like to remain living in Australia. They live together in a home that was purchased in 2015, for $425,000. The applicants say that if they have to sell the home, it will be at a loss. There is a mortgage of approximately $298,000 remaining on the property. However, the Tribunal also considers that the applicant could sell this property if necessary, the proceeds of which could be utilised to assist his family in setting up a new household on return to China.
The applicant has a brother, who lives in Queensland with his wife. Both the applicant and his wife have family remaining in China.
The applicant’s son, now an adult, still lives at home and works full time as a welder. He has already completed his secondary education in Australia.
The applicant says that he will not be able to get work in China if he has to return home. He also says he will not be able to register his daughter for school. He could not provide any persuasive detail about either of these assertions.
The applicant, and his wife, both express concern for their daughter, who is currently in Grade 8. Although the applicant claimed that his daughter did not understand any Mandarin, when pressed, it became apparent to the Tribunal that the applicant speaks Mandarin at home, and therefore his daughter must communicate with him in Mandarin as he does not speak English. The Tribunal accepts that it may take some adjustment for the daughter to become fully comfortable speaking and writing Mandarin in China.
The applicant’s daughter lived in China until she came to Australia with her family at the age of seven. The applicant says that she is a talented artist and should be given a chance to develop those skills in Australia. There is no evidence before the Tribunal that she would be unable to develop her talent in China.
The Tribunal gives the inconvenience and stress of relocation to all of the applicant’s family, but particularly in relation to the applicant’s daughter, some weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal concurs with the delegate that the applicant was cooperative in that he responded to the Department's NOICC and has provided a further submission to the Tribunal. He concedes that he has done the wrong thing and is apologetic for the impact his conduct has had on his family. The Tribunal therefore accords this factor some weight in favour of not cancelling his visa.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal notes the delegate's finding that there was no evidence of any other non-compliance by the applicant known to the Department. It further notes that there is none before the Tribunal. It therefore accords this factor some weight in favour of not cancelling the applicant’s visa.
The time that has elapsed since the non-compliance
The Tribunal accepts that it is now approximately 6 years since the applicant was granted his subclass 187 visa on the (incorrect) basis that he had competent English. The Tribunal considers that this is a reasonably significant period. It therefore accords this factor some weight in favour of not cancelling his visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches any contribution made by the holder to the community.
There was no evidence before the Department, and there is none before the Tribunal, that the applicant has breached the law since the non-compliance identified by the Department. It therefore accords this factor some weight in favour of not cancelling his visa.
The Tribunal accepts that the applicant has involved himself in some community activities, and that he has done things to assist others, such as purchasing masks for use by others during the Covid-19 pandemic, and generally helping when he can. The Tribunal accords this some weight in favour of not cancelling his visa.
The Tribunal is not satisfied that the visa cancellation would lead to the breach of any of Australia's international obligations.
The Tribunal accepts that the applicant and his family members may be stressed due to the visa cancellation and appreciates that they would prefer to remain in Australia. The Tribunal does not agree with the applicant’s representatives characterisation of the applicant’s conduct as a “silly” mistake. Rather, this was conduct that went to the core of the applicant’s entitlement to the visa and to the integrity of Australia’s visa system generally. The Tribunal is not satisfied that the applicant, or his family, will suffer serious disadvantage if his visa is cancelled and they are obliged to return to China.
The Tribunal has weighed the factors for and against cancellation of the applicant's visa carefully. While there are factors which weigh against cancellation (such as the length of time that has now elapsed since the applicant was granted the subclass 187, the impact on the applicant’s Grade 8 daughter, the applicant's generally cooperative attitude to the Department and the lack of any other evidence of non-compliance with migration law or any other Australian law), it considers that these are outweighed by the factors in favour of cancellation. Importantly here, the factors that weigh in favour of cancellation include the fact that a mandatory requirement for the applicant obtaining permanent residence in Australia did not exist, and the fact that he chose to give incorrect information and a bogus document to the Department to satisfy the competent English requirement in cl.187.232.
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 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Bridget Cullen
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.

[2021] AATA 783

16 February 2021

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

Procedural Fairness

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