Huang (Migration)

Huang (Migration) [2019] AATA 1419 (4 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Baobo Huang
CASE NUMBER:  1704015
DIBP REFERENCE(S):  BCC2017/236854
MEMBER:Alison Mercer
DATE:4 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s subclass 187 - Regional Sponsored Migration Scheme visa.
Statement made on 04 January 2019 at 12:37pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – bogus document – English Language test result – different person sat the English test – educational disadvantage for family – adverse impact on employer in regional Australia – purchased an Australian home – decision under review affirmed
LEGISLATION
Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014), Schedule 7
Migration Act 1958, ss 5, 48, 97-105, 107-109, 189, 198, 359A, 375A
Migration Regulations 1994, Schedule 2 187.232, PIC 4013; 2.41
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 Immigration to cancel the 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 had provided incorrect information and/or a bogus document when she made her subclass 187 visa. Specifically, the delegate found that the applicant stated she had competent English in her visa application, and had provided an International English Language Testing System (IELTS) test report form dated 3 August 2013 to meet this requirement in cl.187.232. The delegate further found that the test administrators advised the Department on 12 December 2016 that an imposter, and not the applicant, had sat the IELTS test. The delegate found that the applicant had given incorrect information (that is, that she said that she had competent English) and provided a bogus document (the IELTS test report form dated 3 August 2013), in breach of ss.101(b) and 103 of the Act. The delegate found that there were therefore grounds for cancellation of the applicant’s subclass 187 visa. The delegate assessed the prescribed factors and determined that the factors in favour of cancellation outweighed those against cancellation.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Visa application
The Department’s records indicate that the applicant applied for a subclass 187 visa on 25 January 2016, and that she stated in her visa application that she had undertaken an IELTS test on 3 August 2013 and that her English language ability was ‘competent.’ The records further indicate that the applicant submitted a copy of an IELTS test report issued by the Cultural & Education Section, British Consulate-General, Shanghai, with a validation stamp from Cambridge ESOL/British Council/IDPIA dated 13 August 2013, which contained a photograph of the candidate and information indicating that the applicant sat a test at test centre CN004 on 3 August 2013, in which she obtained the following results: 6.0 for listening, 7.5 for reading, 5.0 for writing, and 6.0 for speaking, with an overall band score of 6.0.
The Department’s records indicate that the applicant was granted a subclass 187 visa on 31 May 2016.
On 12 December 2016, the Department received advice from the British Council that the applicant used an imposter to sit for the IELTS test in China. On 11 January 2017, a facial image comparison was done by a Facial Image Comparison Specialist at the Department, who used a copy of a photograph of the applicant that she submitted with her visa application, and the photo of the candidate held by the IELTS test administrators. The Specialist concluded that the photographs were of different people. Given this, it was concluded that the IELTS test form submitted by the applicant was a bogus document; that it, it purported to be, but was not, issued in respect of the applicant. Moreover, she had falsely asserted that she had competent English, and that this was relevant to cl.187.232, which requires that at the time of application, the applicant had competent English (or was in a class of persons exempt from having to have competent English).
Notice of Intention to Consider Cancellation
On 14 February 2017, the Department sent a Notice of Intention to Consider Cancellation (NOICC) to the applicant. The Department officer who wrote the letter stated that he considered that the applicant had not complied with ss.101 (requiring visa applications to be correct) and 103 (requiring bogus documents not to be given).
The officer noted that the applicant answered ‘yes’ to the declaration in her visa application that if she (or someone acting on her behalf) provided a bogus document or false or misleading information either knowingly or otherwise, the visa would be refused and a 3 year ban imposed, or if a visa had been granted, it would be cancelled. The officer noted that she was required to meet cl.187.232 to qualify for a subclass 187 visa in the Direct Entry, which required that at the time of application, the applicant had competent English (or was in a class of persons exempt from having to have competent English). He further noted that in the section of her visa application headed ‘Language ability,’ the applicant answered ‘yes’ to the question of whether she had undertaken an English language test within the last 36 months, and that she had undertaken an IELTS test on 3 August 2013 (test reference number 13CH313107HUAAB004A) in China and that her language ability was ‘competent.’ The officer found that the applicant submitted an IELTS test report form issued by the Cultural and Education Section, British Consulate-General, Shanghai, with a validation stamp from Cambridge ESOL/British Council/IDPIA dated 13 August 2013 with her application, and that the test report form contained a photograph of the candidate and the following results: 6.0 for listening, 7.5 for reading, 5.0 for writing and 6.0 for speaking, with an overall band score of 6.0.
The officer advised the applicant that the Department received advice on 12 December 2016 from the British Council that the applicant had used an imposter to sit the IELTS test in China, and that a facial image specialist at the Department had compared the IELTS test form photograph with the photograph of the applicant she submitted with her visa application on 11 January 2017 and found that they were different people.
The officer stated that he therefore considered that the applicant had submitted a bogus document (the IELTS test result form), as it purported to be, but was not, issued in respect of the applicant. The officer further stated that he considered that the applicant did not comply with ss.101(b) and 103 of the Act, by providing a bogus document and providing incorrect information that her English language ability was competent when she had not in fact undertaken an IELTS test. The officer invited the applicant to respond to this information, and to address the factors set out in r.2.41, being:
·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 applicant;
·the subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·any other instances of non-compliance by the applicant 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;
·whether there are persons in Australia whose visas would, or might be, cancelled consequentially;
·whether Australia has obligations under relevant international agreements that would or might be breached as a result of the visa cancellation;
·whether there were mandatory legal consequences to a cancellation decision; and
·any other relevant matters.
Applicant’s response
The applicant responded via her agent on 24 February 2017. She provided a letter dated 15 February 2017 in which she stated (in summary):
·she did comply with ss.101 and 103 of the Act;
·the person who appeared in the photograph in the IELTS test report form was indeed her and she believed that the officer’s assumption that it was another person might be due to technical issues, such as how the camera was positioned at the Test Centre on that particular day;
·she remembered nearly missing the bus to the Test Centre and she therefore arrived in hurry;
·it would be unreasonable if her scores were invalidated for the implied reason given by the delegate;
·in addition, it would ruin life for both the applicant and her family if her visa were cancelled. It had already been more than 3 years since they came to settle in Australia. They had sold all their property in China, had bought a house in Australia and her son was at high school here. He was preparing for his College Admission Exams at present and the intended decision would be a terrible shock to him;
·moreover, with China developing at such a quick pace, how could the applicant and her family relocate there and support themselves, having been out of that environment for such a period; and
·the intended decision was baseless and unfair.
The applicant also provided a letter confirming that her son was in year 11 at his local secondary college.
Department decision
On 2 March 2017, the delegate made a decision to cancel the applicant’s subclass 187 visa.
The delegate accepted that the Departmental investigation showed that the photograph in the applicant’s IELTS test result form was not the same as the photograph of the applicant that she provided with her visa application, and therefore accepted the British Council’s conclusion that an imposter sat the test under the applicant’s name. He found that the applicant therefore had breached ss.101(b) and 103 by providing incorrect information (that is, that she had competent English as required at time of application by cl.187.232) and a bogus document (being the IELTS test result form issued on 13 August 2013). He did not accept the applicant’s explanation that the discrepancy between the photographs on the visa application form and IELTS test result form was due to technical issues at the Test Centre. The delegate therefore found that a ground for a cancellation was made out.
The delegate therefore went onto consider the prescribed grounds in r.2.41 to determine whether or not the visa should be cancelled.
The delegate noted that the correct information was that that the applicant did not sit the required IELTS test and achieve the required scores to demonstrate competent English as required by cl.187.232, and that the IELTS test provided to the Department by the applicant was not issued in respect of her. Accordingly, he found that there was no genuine document. He further found that the decision to grant a visa to the applicant was based, wholly or partly, on the incorrect information provided in the bogus document; namely, the IELTS test form results, which the applicant relied upon to show that she met cl.187.232. He gave no weight to this factor in favour of not cancelling the visa.
In relation to the circumstances in which the non-compliance occurred, the delegate found that the non-compliance appeared to be due to the applicant’s voluntary conduct by knowingly and willingly providing incorrect information (and a bogus document) to obtain permanent residence. He further noted that the applicant had had multiple opportunities to present accurate information. He therefore gave no weight to this factor in favour of not cancelling the visa.
The delegate acknowledged that the applicant had resided in Australia since 2013 with her husband and child. He further acknowledged that the applicant was granted a subclass 187 visa based on her skills as a Massage Therapist, an occupation on the Consolidated Skilled Occupations List, and that she claimed it would be difficult for her and her family to now relocate back to China, especially for her son and his educational opportunities. The delegate stated that he placed some weight on this factor in favour of not cancelling the visa.
The delegate found there was no evidence in the Department’s systems that the applicant made any effort to correct the incorrect information provided to the Department. He therefore gave no weight to this factor in favour of not cancelling the visa. He acknowledged that there was no other evidence to suggest that the applicant had any other instances of non-compliance, and he placed some weight on this factor in favour of not cancelling the visa.
The delegate found that the non-compliance cited in the NOICC related to the applicant’s current subclass 187 visa granted on 31 May 2016. He found that the applicant had not complied with ss.101(b) and 103 since providing incorrect information and a bogus document in her application. He therefore placed little weight on this factor in favour of not cancelling the visa.
The delegate noted that the applicant had not provided evidence that demonstrated a contribution made to the community, apart from her skills in her nominated occupation. He therefore gave no weight to this factor in favour of not cancelling the visa.
The delegate accepted that the applicant’s spouse and son would have their visas consequentially cancelled if he cancelled the applicant’s visa, and he placed some weight on this factor in favour of not cancelling the applicant’s visa.
The delegate found that there was no information before the Department which indicated that cancellation would result in any breach of Australia’s international obligations, nor had the visa applicant advised of having any concerns in relation to those principles. He therefore placed no weight to this factor in favour of not cancelling the visa.
The delegate accepted that visa cancellation might result in the applicant being detained under s.189 and removed from Australia under s.198 of the Act as she would no longer hold a valid visa. He also considered that the applicant might be subject to s.48 of the Act, which would prevent her from applying for most visas in Australia, and that she might be subject to Public Interest Criterion 4013, limiting her offshore temporary visa options as well for a specified period. However, he found that these were the intended consequences of the legislation when a visa was cancelled under these grounds, and that they were not unreasonable. He therefore placed little weight on this factor in favour of not cancelling the visa.
The delegate found that there were no other relevant matters to be considered. He decided, in view of the above findings, to cancel the applicant’s visa.
Tribunal review application
The Tribunal received a review application from the applicant on 7 March 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Yu Huang, as her representative and authorised recipient for correspondence. It was also accompanied by a letter from the applicant dated 6 March 2017, the contents of which can be summarised as follows:
·upholding the decision to cancel would be disastrous for her son, who was enrolled in year 11. According to the Chinese education system, a student who had not taken part in the relevant Admission Examination was not allowed to go to Senior High Schools. This meant that if her son went back to China with the applicant and her spouse, he would need to start junior high all over again;
·her son was already depressed because of what they were going through lately and the prospect of having to waste 3 years of his life would be too heavy for an adolescent like him. Children should not be punished for their parents’ actions and the Tribunal was asked to have compassion for him;
·the decision would be most inconvenient for the applicant’s current employer. The applicant was a good masseuse and numerous clients had become return guests because they enjoyed her service. A new chain shop had been opened exactly for that reason. If she were forced to leave the country now, the shop would be deprived of its most skilful employer. Her employer was willing to testify on her behalf if required; and
·in conclusion, the cancellation would be too cruel and inconsiderate.
The matter was constituted to a Tribunal Member on 30 August 2018. On 21 September 2018, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 30 October 2018. She was asked to provide any written submissions and/or documents in support of her case by 23 October 2018.
On 2 October 2018, the applicant’s agent emailed the Tribunal to advise that the applicant did not wish to attend the hearing, and therefore requested the Tribunal to make a decision on the papers. Attached to the email was a hearing response indicating that neither the applicant nor her agent would attend the hearing, and a letter from the applicant in which she states that she had provided all the documents that she could, and requesting that the Tribunal review her case on the evidence already submitted and provide her with the written decision.
On 10 October 2018, the Tribunal wrote to the applicant via her agent, pursuant to s.359A, to invite her to comment on or respond to information held by the Tribunal, and to invite her to comment on a s.375A certificate contained on the Department file.
The Tribunal noted that the cancellation of the applicant’s subclass 187 visa was made pursuant to s.109(1) of the Act on the basis that she did not comply with ss.101(b) and 103 of the Act, which required that all answers she gave in her visa application were correct and that she must not give, present, or provide to an officer, an authorised system, the Minister or the Tribunal a bogus document, or cause one to be so given, presented or provided. The Tribunal further noted that the Department officer who cancelled her visa found that she had given a bogus document to the Department, being the IELTS test result form for a test purportedly undertaken by her in China on 3 August 2013, but which the delegate found was undertaken by another person (based on facial analysis of the photograph of the test taker held by the IELTS test administrators, and a photograph she provided to the Department with her visa application). The Tribunal stated that the delegate also found that the applicant gave incorrect information to the Department by stating that she undertook this test and obtained the scores recorded in the test result form. The delegate further considered the discretionary factors listed in r.2.41 but decided that the reasons in favour of cancellation outweighed those against.
The Tribunal noted that on 21 September 2018, it invited the applicant to a Tribunal hearing on 30 October 2018 and that on 2 and 10 October 2018, the applicant and her agent indicated that the applicant did not wish to attend the hearing and that she wished the Tribunal to make its decision on the available written evidence. The Tribunal indicated that it would do so but that before it could do so, it was obliged to provide the following information to her and allow her to make a response or comment on it, if she wished to do so. The Tribunal attached a s.375A certificate which covered 3 folios of the Departmental file, and invited the applicant and her agent to comment on its validity. The Tribunal stated that it was of the view that the s.375A certificate was valid as it was issued in relation to folios on the Department file that contained information which would disclose details of investigatory methods used by the Department, and that the Tribunal was satisfied that this would be contrary to the public interest, as asserted by the Department.

The Tribunal noted, however, that it was able to put the gist of the information to the applicant, pursuant to s.359A of the Act. The Tribunal further noted that, as discussed in the delegate’s decision, a facial image comparison was done on 11 January 2017 by a Departmental Facial Image Comparison Specialist, who compared the photograph of the IELTS test taker with a photograph of the applicant which she submitted with her visa application, and concluded that they were different people. The Tribunal advised that the report was certified under the s.375A certificate and therefore could not be released to the applicant. The Tribunal stated, however, that the gist of the information is that the assessor compared various facial features in each photograph to conclude that they were not of the same person. The Tribunal advised that it considered that the above information was relevant to the review for the following reasons:
·   if the Tribunal accepted that the photograph on the applicant’s IELTS test report from for the test of 3 August 2013, which she provided to the Department, was not in fact her, then it might conclude that the IELTS test report from was a bogus document (as defined in s.5 of the Act) and that her statement in her visa application that she sat that test and obtained the listed results was false;
·   if the Tribunal found that she had provided a bogus document to the Department that related to a material particular (her ability to satisfy cl.187.232), then it might find that she had breached ss.101(b) and 103 of the Act and that her visa was liable to cancellation under s.109 of the Act; and
·   if the Tribunal were to find that, and to further find that the prescribed factors in r.2.41 in favour of cancellation outweighed those against, this would be a reason (or part of the reason) to affirm the decision under review.
The Tribunal invited the applicant to give comments on, or respond to, the above information (and the validity of the s.375A certificate) by 24 October 2018.
The Tribunal did not receive any comments or response from the applicant or her agent by 24 October 2018. It has not received any further communication from them to date.
Relevant law
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.
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 ss.101(b) (‘a non-citizen must fill in his or her application form in such a way that… no incorrect answers are given or provided’) and 103 (‘a non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented or provided’) in the following respects:
·the applicant declared that she had competent English in her visa application and further stated that she undertook an IELTS test on 3 August 2013 in China and that her language ability was ‘competent;’
·she provided a copy of an IELTS test report form issued on 13 August 2013 by the Cultural & Education Section, British Consulate-General, Shanghai, with a validation stamp from Cambridge ESOL/British Council/IDPIA dated 13 August 2013. The form contained a photograph of the candidate and listed the applicant’s scores of 6.0 for listening, 7.5 for reading, 5.0 for writing and 6.0 for speaking, with an overall band score of 6.0;
·on 12 December 2016, the Department received advice from the British Council that she had used an imposter to sit for the IELTS test in China;
·on 11 January 2017, a Departmental Facial Image Comparison Specialist compared the copies of the photograph submitted by the applicant with her visa application and the photograph of the test taker on the IELTS test report form and concluded the photographs were of different people;
·the applicant therefore had not complied with s.101(b) because, in support of her application and in order to satisfy the legislative requirements for grant of a visa, she provided incorrect information to the Department. Her language was not ‘competent’ as she stated in the section of the visa application on ‘applicant language ability.’ She did not undertake the IELTS test to obtained the required score to satisfy the language requirement for points to be awarded;
·cl.187.232 required the applicant to have competent English at the time of her visa application (or be exempt from having to do so). She submitted scores of 6.0 for listening, 7.5 for reading, 5.0 for writing and 6.0 for speaking, with an overall band score of 6.0;
·the adverse information received from the British Council (and from the Department’s Facial Image Comparison Specialist) indicated that the IELTS test result form submitted by the applicant was a bogus document as it purported to be, but was not, issued in respect of her; and
·the delegate therefore considered that the applicant had not complied with both ss.101(b) and 103 of the Act because, in support of her application, and in order to satisfy the legislative requirements for grant of a visa, she had made incorrect statements, provided incorrect information and provided a bogus document to the Department.
The Tribunal has considered the available evidence, and concludes that there was non-compliance by the applicant in the manner particularised by the delegate in the s.107 notice. In reaching this conclusion, the Tribunal gives weight to the information from the British Council indicating that an imposter (and not the applicant) sat the IELTS test on 3 August 2013 at the Test Centre in Shanghai, China. It further gives particular weight to the conclusion of the Department’s Facial Image Comparison Specialist that the photograph of the applicant that she submitted with her visa application is different to the photograph of the test-taker on the IELTS test report form issued 13 August 2013 in respect of the test purportedly undertaken by the applicant at the Shanghai Test Centre on 3 August 2013. That is, the Tribunal is satisfied that the photograph on the IELTS test report form is of a different person to the applicant. Not only has a detailed technical comparison of the 2 photographs been undertaken by an expert assessor, the Tribunal has examined the 2 photographs on the Department file itself and is of the view that it is apparent that they are of 2 different people. The Tribunal rejects as implausible the applicant’s suggestion that the reason for the difference in appearance between the 2 photographs (and why the photograph on the IELTS test result form does not resemble her) is due to technical difficulties with the camera at the Test Centre. Nor does it accept that the applicant actually sat the IELTS test on 3 August 2013 (regardless of whether she physically attended the Test Centre as claimed or not). It is satisfied that another person sat the IELTS test on behalf of the applicant, purporting to be the applicant, and that the applicant did not herself sit the IELTS test at the Shanghai Test Centre on 3 August 2013.
Given the above findings, the Tribunal is satisfied that the IELTS test result form issued to the applicant on 13 August 2013 for the test on 3 August 2013 is a bogus document as per s.5 of the Act, as the Tribunal reasonably suspects that it purports to have been, but was not, issued in respect of the applicant and/or has been altered by a person who did not have authority to do so. The Tribunal finds that the applicant provided this document to the Department and that she thus breached s.103 of the Act, as particularised by the delegate in the s.107 cancellation notification.
Moreover, given the above findings, the Tribunal finds that the applicant gave incorrect information in her subclass 187 visa application made on 25 January 2016 that she had undertaken an IELTS test on 3 August 2013 and that her English language ability was ‘competent’ because that she had obtained the following results: 6.0 for listening, 7.5 for reading, 5.0 for writing, and 6.0 for speaking, with an overall band score of 6.0. The Tribunal therefore finds that the applicant breached s.101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with ss.101(b) and 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. 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.
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, Australia’s 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 3 August 2013 and therefore did not obtain the scores listed in the test report issued in her name on 13 August 2013. In the absence of any information that she had demonstrated that she had competent English through sitting another English test, or that she was exempt from having to do so, she therefore did not have competent English at the time that she made her visa application on 25 January 2016.
The Tribunal is therefore satisfied that the applicant would not have satisfied cl.187.232 at the time she made her visa application on 25 January 2016 had the correct information been taken into account. The Tribunal gives significant weight to this factor as a factor 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 13 August 2013 is in fact a bogus document. It has further found that there is no evidence of her having undertaken any other English test demonstrating that she had competent English prior to making her 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 she made her 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 she therefore had to demonstrate that she had competent English at the time that she made her visa application on 25 January 2016, and that she did so by submitting the IELTS test report form purportedly issued in her name on 13 August 2013.
The Tribunal has found that this IELTS test report form was a bogus document, in that the photograph contained in that test report form was not the applicant and that the test was therefore undertaken by someone other than the applicant, 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 she provided in her visa application to assert that she had competent English for the purposes of cl.187.232, and the bogus document (the IELTS test result form issued on 13 August 2013) she provided to support this claim. The Tribunal considers this a significant factor weighing in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred
As noted above, the Tribunal rejects as implausible the applicant’s suggestion that the difference in photographs was due to technical difficulties with the IELTS Test Centre camera. The Tribunal is satisfied that the applicant chose to use an imposter to sit the IELTS test on her behalf at the Shanghai Test Centre on 3 August 2013, and that she similarly chose to incorrectly advise the Department in her visa application that she sat an IELTS test there on 3 August 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 she would otherwise not have been entitled. The Tribunal considers this a significant factor weighing in favour of cancellation of the visa.
The present circumstances of the visa holder
The applicant advised the Tribunal in October 2018 that she had provided all the information she could and that she wished the Tribunal to make its decision on the basis of the available evidence. The last detailed information that the Tribunal has from the applicant regarding her circumstances and those of her family date from March 2017, at which time the applicant indicated that (in summary):
·the decision to cancel would have significant adverse effects on her son who was currently undertaking year 11 in Australia, as his Australian education would not be recognised if he had to return to China and he would have to re-do part of his secondary education in China. This prospect was causing her son stress and depression;
·the applicant was employed as a masseuse and a decision to cancel would have an adverse effect on her current employer as the applicant was a good masseuse who had an established clientele; and
·the family would face great difficulty in re-establishing themselves in China due to having sold their assets there to purchase a house in Australia.
The Tribunal has not been provided with any updated information as to any of these issues. No evidence has been provided as to the applicant’s son’s current educational situation, although the Tribunal notes that if he progressed as was to be expected, he would by now (that is, January 2019) have completed year 12 and thus have completed his secondary schooling. No evidence has been provided to the Tribunal about the applicant’s husband’s employment or more general situation. No evidence has been provided to indicate whether the applicant’s employment as a masseuse is ongoing, and if so, why she could not be replaced (albeit even if there were some disruption to her employer if required to do so). No evidence has been provided to suggest that the applicant, her husband and/or her son suffer any serious and/or ongoing physical or psychological issues. No evidence has been provided about the applicant’s property in Australia, its value and/or any impediment to the applicant and her husband selling this property if required to depart Australia.
Accordingly, while the Tribunal accepts that the applicant and her family have been in Australia since 2013 (when the applicant was originally granted a subclass 457 visa) and would thus suffer disruption if required to depart Australia after nearly 6 years, it is unable to be satisfied, due to the paucity of evidence before it, that this disruption would be significantly adverse to the applicant and her family. Therefore, the Tribunal gives this factor limited weight in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his 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 she responded to the Department’s NOICC, and has provided a further submission to the Tribunal. It therefore accords this factor some weight in favour of not cancelling her 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 her visa.
The time that has elapsed since the non-compliance
The Tribunal accepts that it is now approximately 2.5 years since the applicant was granted her subclass 187 visa on the (incorrect) basis that she 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 her visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
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 her visa.
Any contribution made by the holder to the community
The Tribunal has very limited information regarding any contribution made by the applicant to the community. She claimed in March 2017 that she was a valuable employee for her employer and that as a masseuse, she had established a loyal clientele in Australia. However, the Tribunal is not satisfied that this constitutes a significant contribution to the Australian community by the applicant, or that it would – in and of itself – justify not cancelling her visa.
Other relevant factors

The Tribunal has considered whether any other people besides the applicant would be adversely affected by the visa cancellation. It has already accepted that the applicant’s son and husband would be affected to some degree if required to depart Australia due to the consequential cancellation of their permanent residence visas, although it has no current information about their situation to assess in this regard. It thus gives limited weight to this as a factor in favour of not cancelling the applicant’s visa, especially as it appears that the applicant’s son would by now have completed his secondary education in Australia.
The Tribunal has also considered the applicant’s claim that her employer would be affected, as would her clientele. Once again, the Tribunal has no current evidence of if this remains the case. It is not satisfied, on the limited evidence before it, that the applicant’s employer would not be able to replace her if necessary, nor that her clientele would not accept an alternative masseur or masseuse. It notes that the applicant stated that she and her husband bought property in Australia after liquidating their assets in China to do so. However, it considers that the applicant could sell this property if necessary, the proceeds of which could be utilised by them to assist them to re-establish themselves in China.
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 her family members may be stressed due to the visa cancellation, which is understandable. However, it is not satisfied that she or they will suffer serious disadvantage if her visa is cancelled and they are obliged to return to China.
The Tribunal is aware that in certain circumstances, there may be a duty to inquire incumbent on the Tribunal, but is satisfied that in this case, the issues in dispute have been clear to the applicant and her agent since receiving the NOICC in February 2017, and that they elected not to attend the Tribunal hearing offered to them, nor to provide any updated information regarding the applicant and her family’s circumstances since March 2017. Under the circumstances, the Tribunal has made its decision on the available evidence, as specifically requested by the applicant in October 2018, and has not taken steps to make any further inquiries about the applicant and her family’s present circumstances.
Conclusion
The Tribunal considers that the ground for cancellation of the applicant’s visa is made out. 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 visa, 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, which include the fact that a mandatory requirement for the applicant obtaining permanent residence in Australia did not exist, and the fact that she 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 applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Alison Mercer
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.

[2019] AATA 1419

4 January 2019

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Immigration

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