Ho (Migration) - [2021] AATA 2661

Ho (Migration) [2021] AATA 2661 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ngoc Trieu Ho
Mrs Thi Thu Van Nguyen
Miss Ngoc Van Khanh Ho
Mr Dang Khoa Ho
CASE NUMBER:  2101576
HOME AFFAIRS REFERENCE(S):          BCC2020/782910
MEMBER:Michael Cooke
DATE:30 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 30 June 2021 at 12:26pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – incorrect answer and bogus document in visa application – English language test result and certificate – applicant sat test in Australia and provided unsuccessful result to agent – agent provided incorrect information about successful test result in Vietnam in application – applicant’s reckless indifference and possible collusion – discretion to cancel visa – applicant ceased working with sponsor two months after visa granted, now working in different job with different employer – members of family unit – hardship if cancellation affirmed – best interests of children, especially education – decision under review set aside for first applicant, no jurisdiction for other applicants
LEGISLATION
Migration Act 1958 (Cth), ss 5, 98, 101(b), 103, 107, 108, 109(1), 120, 140(1), 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 186.213, Schedule 4, criterion 4020
CASE
Gill v MIBP [2016] FCAFC 142
Kaur v MIBP [2019] FCAFC 53
Koirala v MIBP [2014] FCCA 842
MIAC v Khadgi (2010) 190 FCR 248
Singh v MIBP [2015] FCCA 2776
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 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant breached ss.101 and 103 of the Migration Act because he provided incorrect answers and bogus documents regarding his visa application. 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. This was as a consequence of that cancellation and not by a decision but rather 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 Tribunal issued an Invitation to the applicant as follows:
INVITATION TO COMMENT ON VALIDITY OF S.375A CERTIFICATE – MR NGOC TRIEU HO, MRS THI THU VAN NGUYEN, MR DANG KHOA HO…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ho (Migration)

Details

AGLC: Ho (Migration) [2021] AATA 2661
Case: [2021] AATA 2661
Decision Date: 30 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ho against the cancellation of his Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), temporary residence transition stream. The dispute arose from the submission of a fraudulent English language test result and certificate as part of his visa application. The case was heard by Michael Cooke.

The primary legal issues before the court were whether Mr Ho had failed to comply with sections 101(b) and 103 of the *Migration Act 1958* (Cth) by providing a bogus document and incorrect information, and if so, whether his visa should be cancelled. The court was required to consider Mr Ho's explanation for the non-compliance, including his reliance on a migration agent, and to determine if he had demonstrated "reckless indifference" to the truth of the information provided.

The court found that Mr Ho had indeed failed to comply with the relevant sections of the Act. While Mr Ho claimed he was unaware of the fraudulent document and had provided an authentic, albeit unsuccessful, English test result to his agent, the Tribunal was satisfied that he had displayed "reckless indifference" to his agent acting unlawfully or dishonestly by submitting a bogus document and incorrect information. This finding was based on the totality of the evidence, including Mr Ho's oral evidence and the fact that the correct information regarding his English language proficiency was "radically different" from what was provided. The court applied the principles established in *Kaur v MIBP* [2019] FCAFC 53 and *Gill v MIBP* [2016] FCAFC 142 regarding the meaning of "reckless indifference" in such contexts.

The Tribunal concluded that grounds existed to cancel Mr Ho's visa under section 109 of the Act, and that the discretionary power to cancel the visa should be exercised. The court set aside the decision under review for the first applicant, Mr Ho, indicating that the visa cancellation was not affirmed. However, the text provided does not detail the outcome for any other applicants who may have been part of the family unit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds the applicant’s behaviour, under the above circumstances, can be viewed in the light of Kaur v MIBP [2019] FCAFC 53. Here the Federal Court found that what is meant by indifference in this context is “reckless indifference” as to the truth of the representation which was that the applicant had the necessary band score in a genuine IELTS test when he did not.Conclusion on non-compliance The Tribunal has considered the claimed non-compliance within the rubric of Gill v MIBP [2016] FCAFC 142. The applicant has been questioned extensively in oral evidence about his claims and the circumstances that caused the issuance of the s.107 Notice. The applicant agrees that there was a breach. The Tribunal is satisfied (when the totality of the evidence is considered) that the applicant has shown ‘reckless indifference’ as to his agent acting unlawfully or dishonestly - by submitting a bogus document and incorrect information to the Department. The Tribunal has weighed this statement with his oral evidence and is satisfied that there was non-compliance by the applicant in the way described in the Notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does arise. Therefore, the Tribunal finds that the applicant has not complied with sections 101(b) and 103 of the Act, and grounds exist to cancel his visa under section 109 of the Act.Consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover matters such as: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. Briefly, they are: The correct information Based on all the evidence, the Tribunal finds that the correct information at the time the applicant lodged his ENS Temporary Residence Transition Subclass 186 visa (5 November 2016) is that he had not undertaken the IELTS test on 9 January 2016 (in Vietnam) in which it appeared that he achieved a ‘vocational’ English language level (Band 5). In fact, he later evidenced a valid Australian IELTS test result which indicated he did not meet the required Level 5 band score after all. Therefore, the correct information is radically different from what was provided in his visa application. The Tribunal gives this consideration significant weight in favour of cancellation.The content of the genuine document (if any) The applicant had already provided a copy of an IELTS test in support of his ENS Temporary Residence Transition (Subclass 186) visa application which he claimed to have sat on 9 January 2016. Subsequently, after the grant of the visa, the Department undertook verification checks and was advised by IDP Education (Vietnam) that the applicant did not undertake the test in question on 9 January 2016.

Ratio Decidendi

Legal Principle Established

The delegate indicated that this information was relevant to the proposed cancellation of his visa because in his NOICC response he declared he subsequently studied English and successfully acquired the Certificate III through NSW TAFE, but did not provide evidence of holding the English level required to undertake this course.Section 108 of the Migration Act 1958 provides: The Minister is to:(a) consider any written 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.Does the visa holder agree that there was non-compliance? YesIf yes, reasons for non-compliance: In his Statutory Declaration in response to the NOICC, the applicant stated:·He engaged a migration agent who prepared the application on his behalf. He met with his agent who requested he undertake an English test for the application. The agent did not advise what the required scores for the test were. He sat an IELTS test and gave the results to his agent. He did not provide his agent the IELTS test which was submitted in support of his application.·The agent was engaged on behalf of his employer, and he considered himself wholly dependent on the instructions of the employer and agent in relation to his visa application. He did not undertake any thorough research into the requirements of his visa applications as he considered the lawyers were taking care of the process and he did not have reason to doubt their integrity.·The agent acted without his knowledge or instructions by submitting the bogus IELTS test.·He acknowledges the IELTS test provided with his visa application was a counterfeit document, as he did not sit that test. He did not instruct his lawyer to obtain or provide the fraudulent document. He provided him with an authentic test result and was not advised of any issue with it. He has since become aware his original English test did not meet the requirements. The applicant has repeated these claims in oral evidence as well at the recent hearing. The applicant’s (now) migration agent has submitted that the applicant was unaware of the non-compliance under sections 101(b) and 103, but that grounds exist regardless. The applicant, therefore, accepted he was non-compliant under sections 101(b) and 103 of the Act. The applicant has stated he accepts he was non-compliant with sections 101(b) and 103 of the Act, as put to him in the NOICC. 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 ss.101 and 103(b).Findings as to whether there was relevant non-compliance. The applicant has provided a comprehensive submission outlining the sequence of events leading up to the visa cancellation as follows: On 17 December 2020, the applicant (through his new representative) responded to the abovementioned NOICC by providing a Statutory Declaration from the primary applicant and other supporting documents demonstrating the circumstances in which the non-compliance occurred, as well as evidence to support a decision not to cancel the parties’ visa. The representative opined as follows:Mr HO wishes to maintain his claims as shown in the Decision Record dated 10 February 2021 as below:· He engaged a migration agent who prepare the application on his behalf. He met with this agent who requested him undertake an English test for the application. The agent did not advise what the required scores for the test were. He sat an IELTS test and gave the results to his agent. He did not provide his agent the IELTS which was submitted in support of his application.· The agent was engaged on behalf of his employer, and he considered himself wholly dependent on the instructions of the employer and agent in relation to his visa application. He did not undertake any thorough research into the requirements of his visa applications as he considered the lawyers were taking care of the process and he did not have reasons to doubt their integrity.· The agent acted without his knowledge or instructions by submitting the bogus IELTS test.· He acknowledges the IELTS test provided with his visa application was a counterfeit document, as he did not sit that test. He did not instruct his lawyer to obtain or provide the fraudulent document. He provided his lawyer with an authentic test result and was not advised of any issue with it. He has since become aware his original English test did not meet the requirements.· Despite the fact that the bogus document was not provided by Mr HO, he accepts that he was non-compliant with section 101(b) and 103 of Migration Act 1994 (Cth) when he was communicated by the Department regarding the result of IELTS test dated 9 January 2016 which had been found a counterfeit document. Mr HO confirmed that he did not sit this test and never saw or heard of this test result before. The applicant submits that he did not collude with his agent in fabrication of the bogus document or instructed his agent to do so.· Before coming to Australia, after having graduated with a Bachelor of Business and Science in 1999, Mr HO had a long and stable career as a producer at Phuong Nam Film company from 1999 to 2005, then as Media Planning Manager in Thanh Nien Film company from 2007 to 2014. Mr HO also worked as Financial Consultant for Prudential Vietnam from 2005 to 2007 where he found his strengths and interests in financial area. Being invited and accepting to join JT King Finance Pty Ltd in the position of Marketing Specialist was naturally a professional advancement based on his pre-existing valuable skills set combined from the two main areas in his former career life: media and finance. · It is submitted that this was what Mr HO could do best professionally with or without English language competency. During his work at JT King Finance Pty Ltd, Mr HO served a clientele predominantly speaking Vietnamese in western suburbs of Sydney, and English was not a practical skill required by his job during that time. He did his job well and was appreciated by his clients and employer who promised to sponsor for his permanent residency application. Naturally, it was not in the applicant’s mind the need to make a thorough research into what were the statutory requirements for the grant of Subclass 186 visa, including English language. Further, with the complexity of immigration law and visa application procedure, it is reasonable for Mr HO to wholly rely on his agent who worked closely with his former employer to take care of his visa application.· Section 98 of the Act stipulates that ‘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 caused to be filled or if it is otherwise filled on his or her behalf’. On that basis, although Mr HO did not provide the bogus document, any work of his agent done on his behalf is taken to be done by himself. However, we also note that in Gill v MIBP [2016] FCAFC 142, the Court held that the misconduct of the agent can affect the operation of this provision in circumstances where the applicant was found not to have colluded in the fraud or shown ‘indifference’ as to his agent acting unlawfully or dishonestly.