HUANG (Migration)

[2019] AATA 848

HUANG (Migration) [2019] AATA 848 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kaixin HUANG

CASE NUMBER:  1727976

DIBP REFERENCE(S):  BCC2016/4280438

MEMBER:Wan Shum

DATE:23 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 23 January 2019 at 11:39am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – false and misleading information – bogus documents – Diploma of Hospitality certificate – education provider claimed clerical error – employment reference letters – Tribunal confined to deciding non-compliance as described in s 107 notice – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 108, 109
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

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 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached s.101(b) by giving an incorrect answer on her visa application and s.103 by providing a bogus document. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant sought review of that decision and was represented in relation to the review by her registered migration agent.

4. The applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tuying Liang, who is the applicant's friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The representative attended the Tribunal hearing.

5. While the evidence raises serious questions as to whether the applicant should have been granted the visa, for the following reasons, the Tribunal has concluded that the ground for cancellation has not been made out and, regrettably, the decision to cancel her visa should be set aside.

   BACKGROUND

6. The applicant had applied for a Subclass 187 visa granted on 29 April 2015. She nominated the occupation of Café or Restaurant Manager. To apply for the visa, the applicant completed and submitted the form ‘Application for Permanent Employer Sponsored or Nominated Visa’ and provided a number of supporting documents, which included a resume, a Diploma of Hospitality certificate dated 11 March 2011 and transcript, and work reference letters. Relevantly, the applicant claimed to have completed a Diploma of Hospitality certificate at Evolution System for Training and Development (Evolution) from 15 March 2009 to 11 March 2011. According to PRISMS records, the applicant was enrolled in a number of courses with different education providers but there was no record of enrolment with Evolution.

7. The delegate made enquiries with a number of education providers, including Evolution, regarding the applicant’s studies. Evolution advised on 26 July 2017 that there was no record of the applicant, although they had two students with similar names but not the same date of birth as the applicant. Top Education Pty Ltd provided a copy of the applicant’s academic record which indicated that she had failed all of the six subjects for a Diploma of Business from Trimester 2, 2010 to 1, 2011 and a copy of a warning letter issued in October 2010 regarding her unsatisfactory progress. 

8. Following these enquiries the delegate considered that, when completing the visa application form, the applicant had breached s.101(b) as she gave details of having completed a Diploma of Hospitality at Evolution when they had advised the Department of Immigration (Immigration) that she had not. The delegate also considered that the certificate and academic transcript were bogus documents, being “counterfeit or has been altered by a person who does not have authority to do so”.

9. In addition, the delegate had concerns regarding the applicant’s claimed work experience. The applicant had claimed that she worked for Zhuhai Choji Restaurant in China and Sino Global Holding Pty Ltd in Australia, and provided reference letters from each employer. The delegate referred to the applicant’s movement records and noted that the applicant had spent over 9 months of the time that she claimed to be working in China, in Australia and over 3 months of the time she claimed to be working in Australia, outside Australia. The delegate formed the view that the applicant had provided bogus documents in relation to her studies and work experience for the purposes of obtaining the visa and breached s.103.

10. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of her visa on 4 August 2017 setting out the alleged breaches.

11. The department received an email on 23 August 2017 from Mr Stuart Page, the CEO of Evolution stating that the actual certificate is genuine and not bogus, and referred to it having the security stamp on it. Mr Page states that “the Course code is incorrect and we are unable to clarify the Student number due to a changeover of Student Management Systems. We will reissued [sic] the student with anew certificate and with the correct codes. I cannot explain why she was not issued a CoE back then, however we did have two other Kai Huang during this period you mentioned and she may have been mistaking [sic] her as one of those”.

12. The applicant responded to the NOICC on 28 August 2017 and provided a copy of a newly issued Diploma qualification dated 23 August 2017 and academic transcript signed by Mr Page. In addition, a letter from Mr Page of the same date states that the applicant was enrolled and did successfully complete all units of competency required but “unfortunately, there has been a clerical error in the issuing of the qualification. After reviewing the copy of the qualifications provided and requesting the originals, We completed a search of archived files we have been able to establish that the qualification is a genuine qualification with Evolution. I can verify that the signatures on the certificate are mine.” (errors in the original)

13. A decision was made to cancel the visa on 10 November 2017. The delegate found that there was a breach of ss.101(b) and 103. The delegate considered that there was information which did not support the applicant’s claim that she had obtained a Diploma of Hospitality at Evolution in March 2011 and had not complied with s.101(b) in respect of the questions on the visa application form.

14. In addition, the delegate considered that the applicant had provided bogus documents. The delegate identified the employment references from Zhuhai Choji Restaurant and Sino Global Holding Pty Ltd and the Diploma certificate and academic records from Evolution were ‘bogus documents’ as defined under s.5(1) of the Act.

    Other concerns arising from the material

15. During the course of the hearing, the applicant told the Tribunal that she had not stayed with her Subclass 187 employer (nominator) for the required two year period following the grant of her visa. The reason she gave was because of her pregnancy. However, having regard to all the information before it, the Tribunal has concerns as to whether the applicant ever worked for the nominator. Whilst she gave evidence at the hearing that she went to work every day for almost one year in Tweed Heads, there is no evidence that she ever in fact lived in Tweed Heads. The applicant told the Tribunal that she had lived above the restaurant/coffee shop and that it was located at 7 Boyd Street. She said that there was no lease agreement for her accommodation and there were no tax records as evidence of her employment because she was paid in cash. The Tribunal requested copies of her bank statements for the period she claimed to have been employed and her immediate response was that she did not change her address with her bank at the time. She said that she continued to rent the apartment in George St, Sydney and when asked why, she said because she had overseas visitors who would need somewhere to stay. Asked why they would stay in Sydney rather near her in Tweed Heads if they were visiting her, the applicant stated that they were coming to Australia but not to visit her. This is unconvincing. It does not explain why she would continue to pay rent for an apartment in Sydney when she had made a commitment to work in Tweed Heads for two years as a café/restaurant manager as required for the grant of her visa.

16. The bank statements were provided after the hearing for the period from 1 October 2014 to 31 March 2016. The statements show almost daily transactions in Sydney including ATM withdrawals from World Square, Central Park, Hurstville, regular debits recorded for restaurants located in Sydney (including Golden Century) and shopping purchases for retailers including Burberry, Louis Vuitton, Gucci and Hugo Boss with “Sydney” in the transaction description (as opposed to an online purchase). There are some transactions in Melbourne, Victoria in November 2014 and NT, SA and TAS in March and September/October 2015, but none whatsoever in Tweed Heads. As the transactions occur every day or every second day, it cannot be explained by her claim to have returned to Sydney for holidays or to see a doctor in late 2015 regarding her first pregnancy. There is simply no evidence to corroborate her claims of having worked for Naturez Beef Pty Ltd as a Restaurant or Café Manager at 7 Boyd Street, Tweed Heads or having lived above the shop for the period claimed. She may have paid the employer to nominate her under the Subclass 187 visa program. The Tribunal had sought information regarding the Subclass 187 employment to inform its decision only in terms of the discretion to cancel the visa if the grounds for cancellation were established.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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.

18. 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.

19. 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?

20. 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.  While there is information before the Tribunal which would indicate that there may be other grounds for cancellation, under s.108 the Tribunal is confined to deciding whether there was non-compliance in the way described in the NOICC. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101(b) and 103 in the following respects:

    ·the applicant gave details of having completed a Diploma of Hospitality certificate at Evolution from 15 March 2009 to 11 March 2011 on the visa application form;

    ·the applicant had provided bogus documents, being her resume, the Diploma of Hospitality certificate and academic transcript purportedly issued by Evolution and work reference letters from Zhuhai Choji Restaurant in China and Sino Global Holding Pty Ltd in Australia.

21. The applicant denies the allegations.

    The claimed study at Evolution

22. The Tribunal will first consider whether there is evidence to support a conclusion that the applicant gave incorrect information and/or bogus documents in respect of her claimed study at Evolution. It notes that the applicant was never issued a Confirmation of Enrolment for this course, which is a breach of the Education Services for Overseas Students Act and/or CRICOS National Code by the education provider. It was only after the NOICC was sent to the applicant and she personally contacted Mr Page that he then told the delegate that she had studied there. Mr Page stated that he could not provide an explanation to the delegate as to why that had happened, but noted that there were two other students with similar names during the period the applicant claimed to have been enrolled and that perhaps she was mistaken as one of those students.  

23. This matter was referred to the Australian Skills Quality Authority (ASQA) by the delegate following Mr Page’s initial advice that they had no record of the applicant studying there. However, as referred to above, Mr Page later advised that the student did study there, and ASQA were advised accordingly. The Tribunal also notes information from PRISMS that ASQA had rejected the applications for renewal of VET and CRICOS registrations of Evolution in 2012. It appears that the decision was set aside by the AAT (General Division) and Evolution’s registrations were subsequently renewed. According to enquiries made by the Tribunal with ASQA, in relation to the former, ASQA considered that the matter of the fraudulent certificate had been resolved. In relation to the latter, ASQA confirmed that they had reached an agreement with Evolution which allowed the registration to be renewed and that an assessment would have been made of its compliance with the VET Quality Framework and/or the CRICOS National Code on the day of the audit. The audit occurred in 2012. This is after the applicant claims she completed studies there.

24. The Tribunal notes that the certificate and academic transcript issued in 2011 contained an incorrect course code, SIT50807. The applicant has since provided another Diploma of Hospitality certificate and academic transcript issued on 23 August 2017 with an explanatory letter from Mr Stuart Page, the CEO of Evolution. The course code appearing on the August 2017 documents is SIT 50307, which is the correct course code for the Diploma of Hospitality. While the Tribunal has considered Mr Page’s explanation for the error, that it was clerical in nature, the Tribunal still has doubts about this claimed study.

25. This is because there is information before the Department of Immigration (Immigration) which alleges that Mr Page had received financial reward for enrolling students in Evolution who did not attend the institution and did not submit assignments but were recorded on PRISMS as being enrolled and meeting attendance and academic progress requirements. However, while these allegations have been made, the Tribunal does not have any information as to whether the matters have been properly investigated by the appropriate authorities such as ASQA. It notes that ASQA have advised that it continues to monitor and scrutinise this provider, as it does will all providers. There is no information before the Tribunal as to whether there is any specific information in respect of Mrs Huang’s enrolment or whether the allegations are considered of a probative nature. As such, they remain allegations. While the Tribunal suspects that the applicant may have paid money for the Evolution qualification given her checkered academic history and the allegations, the applicant’s circumstances differ to those in the allegation as she was never recorded on PRISMS as studying at Evolution. It notes that the applicant had CoEs for the same period she claims to have studied at Evolution, but did not obtain qualifications for those other courses. Whilst the lack of a PRISMS record could be considered problematic, the Tribunal does not consider that it is a sufficient basis of itself to find that she did not study there when the education provider states that she did. The applicant holds a Master of Media issued by the University of Sydney, despite a lack of evidence of having completed any study higher than a Diploma and in an unrelated field of study. Other than her inability to tell the Tribunal at hearing what she had studied at the University of Sydney, referring to the course as “Medium”, it does not have any evidence before it which indicates that the Master qualification was not properly issued.

26. Thus, while the Tribunal shares concerns regarding the claimed study at Evolution, the applicant has been issued a Diploma of Hospitality by Evolution as confirmed by Mr Page, the CEO of Evolution. He has confirmed that the applicant completed the study there. Despite allegations and monitoring of the education provider by ASQA, Evolution remains registered. On balance, the Tribunal is not satisfied on the information before it that an incorrect answer was given on the application in respect of her claimed study of the Diploma of Hospitality and cannot find that there is a breach of s.101. Nor does the Tribunal consider that the information before it is sufficiently probative such that it has a reasonable suspicion that the documents are “counterfeit or altered by a person who does not have authority to do so”. Nor can it be said that the qualification and academic transcript were not issued in respect of her, or obtained because of false or misleading information. It thus cannot find that there is a breach of s.103 on this basis.

    The other alleged ‘bogus documents’

27. In the NOICC, the delegate considered the following to be ‘bogus documents’ - the employment reference letters, the diploma and academic transcript from Evolution and the applicant’s resume as it contained misleading information about past studies.

28. In respect of her claimed study, the Tribunal has found above that there is insufficient evidence of a probative nature to find a breach of s.103 in respect of the diploma and academic transcript from Evolution. When Mr Page re-issued the qualification and academic transcript to the applicant following the NOICC, he had confirmed that the version of the qualification provided with the visa application was found in their archives and that the signature that appeared on the qualification was his. 

29. In respect of the applicant’s resume containing misleading information, the delegate referred to the appearance under the heading “Education background” of “August 2011-July 2012, Top education (Diploma)”. The delegate considered that this would indicate that the applicant had completed and obtained a Diploma qualification from Top Education. The enquiries made by Immigration with the provider indicated that the applicant was not issued a Diploma by Top Education as she failed all of the subjects listed on the academic transcript. The Tribunal further notes that the applicant had studied there in Trimesters 2 and 3, 2010 and Trimester 1, 2011, which would correspond with the period from August 2010 to April 2011. While the Tribunal considers this information misleading and inaccurate, and in that sense could be considered incorrect for the purposes of s.101(b), the information contained in the resume was not particularised in the NOICC as a possible breach of s.101(b). It was only identified as a breach of s.103, and as concluded by the delegate, it cannot be said that the resume is a “bogus document” as defined.

1. In respect of the work reference letters and the dates of employment on her resume, the delegate did not consider that the applicant had been employed for the dates set out in her resume and visa application based on the movement records showing the applicant’s entry and departures to and from Australia and considered it as a possible breach of s.103. The version of the letter dated August 2014 from Zhuhai Choji Restaurant which had been provided with the visa application had the following dates of employment: November 2010 to March 2011, November 2011 to March 2012, November 2012 to March 2013 and November 2013 to March 2014. In response to the NOICC, the General Manager of Zhuhai Choji Restaurant issued another letter to explain the discrepancy with the dates advising that the applicant did not work there from November 2010 to March 2011 and stating that the reference letter was issued “according to my memory and the financial records of the company” and referred to his carelessness in the August 2014 letter. It appears that another version of the letter from August 2014 was provided in response to the NOICC, with the periods of work still showing November 2010 to March 2011 but for the remaining periods ending in February 2012, February 2013 and February 2014 rather than each period ending in March of that year. In particular, as noted by the delegate, there are slight differences in the handwritten sections between the first and second version of the letter, in particular the signature and date. The delegate commented that the changed dates of work align more closely to the movement records set out in the NOICC. In respect of the Australian based employment, the letter from the General Director of Sino Global Holding Pty Ltd refers to the applicant being a volunteer and that her attendance and absences were not recorded, as well as indicating that she had personal leave during this period but stated that the exact dates were not recorded.

2. It is obvious that the periods of claimed work with the company in China do not correspond directly with the applicant’s presence in Australia, and that the claimed work with the company in Australia include periods of time when the applicant was not in Australia. The Tribunal has doubts about the length and nature of her claimed employment, particularly in China, following the applicant’s provision of an altered version of the August 2014 letter from Zhuji Choji Restaurant in response to the NOICC with different end months for the work claimed. However, it does not consider that the reference letters are ‘bogus documents’ as defined, as both the General Manager of the Zhuji Choji restaurant and the General Director of Sino Global Holding Pty confirmed that the letters were issued by them and that the applicant worked there, giving explanations for the inaccurate periods of employment. It thus it cannot be said that the references were not issued in respect of her, or counterfeit or altered by a person who did not have authority to, or obtained because of false or misleading information in circumstances when both the employers have confirmed that they wrote the letters and the applicant was employed with them. It could be said that the applicant has given false or misleading information as to her work experience, particularly in terms of the length of employment given the dates do not fully align with her presence and absence in/out of China and Australia. However, the dates of employment were not included in the NOICC for possible non-compliance with s.101 and the Tribunal cannot find that there was non-compliance with s.101 in respect of her claimed employment as it cannot rely upon a different ground.

   Conclusion

3. The information before the Tribunal supports a view that the applicant should not have been granted the Subclass 187 visa in April 2015. The Tribunal has serious concerns about the qualifications that she has obtained in Australia, particularly the Diploma in Hospitality from Evolution but also the Master qualification from The University of Sydney, given that the applicant has difficultly speaking English, and could not even properly state the course for which she holds a Master degree (referring to it as “Medium”). Her work experience is questionable, and her provision of two different versions of a letter in August 2014 after Immigration issued a NOICC is problematic. The Tribunal considers that the correct outcome is that the applicant’s visa be cancelled. Unfortunately, it does not have sufficient evidence to find that there was non-compliance by the applicant in the way described in the s.107 notice. It thus follows that the discretionary power to cancel the applicant’s visa does not arise. 

4. There is sufficient information before Immigration to reconsider cancelling the applicant’s visa, potentially under another ground such as s.137Q.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

   Wan Shum
   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.