JI (Migration)

[2019] AATA 1504

JI (Migration) [2019] AATA 1504 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Huazheng JI
Ms Xiaojie LIU
Mr Shijia JI
Miss Miaoyan JI

CASE NUMBER:  1820401

DIBP REFERENCE(S):  BCC2017/1425868

MEMBER:Catherine Carney-Orsborn

DATE:29 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 January 2019 at 3:10pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) – Subclass 189 Skilled – Independent – non-compliance – TOEFL investigation – bogus IELTS document – failing IELTS test – intentional willingness to circumvent the requirements of the Act – decision under review affirmed – no jurisdiction with secondary applicants

LEGISLATION

Migration Act 1958 (Cth), ss 101-105, 107, 109, 140, 375A
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with section s.103 and therefore cancelled his visa pursuant to s.109.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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The first named applicant (the applicant) appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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?

10. 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.

11. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 in the following respects: On 10 and 11 October 2016 the applicant submitted a TOEFL test result.  On 14 March 2017 the Department received information from TOEFL ETS that as a result of an investigation the applicant’s TOEFL scores had been cancelled by the TOEFL ETS Office of Testing Integrity (OTI).  A forensic facial comparison of the facial image from the test and the facial image of the applicant held in the Departmental systems indicated that they are not the same person.

12. The applicant was informed that the delegate considered the he had not complied with s.103 as he supplied a bogus document.  The letter then went into detail in relation to how the applicant could respond to the process and consequences of a visa cancellation.

13. 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.

14. At the hearing and in submissions provided to the Department the applicant agreed that the IELTS test was a bogus document.

15. For these reasons, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

16. 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).

17. 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.

18. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

19. The Tribunal took oral evidence and submissions from the applicant.  A summary of the evidence is as follows. 

20. The Tribunal explained the process and that it had the Department file, access to databases and the Tribunal file.

21. The Tribunal detailed that the hearing was the applicant’s opportunity to discuss issues that are relevant to the cancellation.

22. The Tribunal discussed the s.375A certificate on the file.  The Tribunal outlined that any information that was relevant under the s.375A certificate had already been disclosed to the applicant and had been set out in the decision.

23. The applicant confirmed that he admitted he had provided a bogus document. 

24. A summary of his evidence is as follows.  He was born in Northern China.  He has parents and extended family in China.  He has a brother in Ireland.  He came to Australia in 2009 on a student visa.

25. He studied engineering at Wollongong University.  He worked delivering pizzas while he studied.  After he graduated he purchased a courier business.  He started working for a Chinese construction company, in Australia, in September 2013 and is still employed by that company.

26. He states that his English is competent as he has to communicate in English with contractors and suppliers.  He stressed that he is able to communicate in English and Mandarin.

27. He claims that he was under stress at the time of undertaking the English test. He had to support his wife and children and he was working long hours and 6 days per week.  He said he had a responsible position as well as the pressure of seeking the approval of his visa.

28. He has undertaken more than 10 IELTS tests.  He claims there was only a .5 of a difference between his score and the score he needed to achieve.  He claims that he had to work hard and he missed the birth of his child in China and almost collapsed due to the psychological pressure.  He claims that it was because of these stressors that he provided a bogus IELTS test.

29. He said that from the moment he and his wife arrived in Australia in 2009 they both wanted to stay in Australia. He said that in Australia, even though there are work pressures and he works on large projects, he feels contented with life and he is proud of the work he is doing.

30. He states that his eldest child has been in child care for two years and is now in Kindergarten.  His youngest child started child care this month.  His eldest child was born in China on 4 July 2013 and first came to Australia in March 2015 with his maternal grandparents.  He departed on 6 November 2015 and returned in February 2017.  He has been in Australia since that time.  The youngest child was born on 16 March 2016 and arrived in Australia in February 2017.

31. The applicant claims that he has never worked in China and that he would not be able to find work if he returned to China. 

32. He claims he has no social life in China.

33. He has a mortgage on a home in Homebush. 

34. He claims that his home is near the opal building and that this may impact on the value of the home. 

35. He claims that the parents of both him and his wife have no financial capacity and he cannot rely on them. 

36. He listed his concerns for his children about returning to China.  He claims they would receive a better education in Australia; he is concerned about contaminated food, milk formula and pollution.  He is also concerned about his sense of security and gave descriptions of dog attacks in Beijing.  He conceded that none of the above related to him or his children.

37. He provided two references from his colleagues at the building construction company.  Mr Yi Yue and Mr J Ju both indicated they understood he had breached the Migration Act however they considered him to be an excellent worker and they asked for him to be given another chance.

38. The Tribunal accepts that his colleagues and manager find him to be an excellent worker and of good character.

39. He provided a report from a psychologist.  The report was dated 8 May 2018.  The psychologist states that she assessed the applicant on 30 April 2018.  In that report she reports back the history given to her by the applicant.

40. The psychologist finds that in late 2015 he was suffering from a Major depressive disorder and had someone else sit the test for him.  The report further states that the applicant has never previously had any psychological or psychiatric treatment and no previous symptoms of psychological problems.

41. The Tribunal accepts that the psychologist has formed an opinion on the applicant’s state of mind when he had someone else sit the test for him in late 2015.   Given that the psychologist reports the applicant had no previous psychological symptoms when she assessed him the once in April 2018, the Tribunal does not accept that without further medical evidence she is able to assess accurately his state of mind two years after the date of the testing.

42. The Tribunal accepts that having sat and failed the IELTS test over ten times he was feeling anxious and stressed.  However this would be an expected response from any person who was continuously sitting for and failing a test.  The Tribunal also accepts that this was important to him as he wished to stay in Australia.

43. All applicants in this visa class would be expected to pass the test so that their competency can be assessed.  The role of Engineer in construction is a very responsible position and involves the safety of any persons who later inhabit or work in the construction. 

44. The tests are important and emphasis must be placed on competent skilled workers.  There is also the integrity of the system at stake.

45. The Tribunal accepts that it is unfortunate that he could not pass the test however he was given ample opportunity and failed.  His position would involve certain responsibilities and possibly verifications.  It is of concern that he has sought to provide a bogus document and undertake to act in a dishonest way to achieve the necessary outcome. 

46. The applicant claimed that his parents do not have any financial capacity however in earlier submissions he claimed that they funded him.  He claims he was under financial stress however his evidence shows that he has been earning a significant income.

47. Many persons suffer from the stress of being a breadwinner when their children are of pre-school age.  People also suffer from the stress and anxiety of sitting exams.  These are the stressful periods of most people’s life.  They are not unusual and do not ground an excuse to provide bogus documents which could result in the person being provided a skilled visa and undertaking work where he is responsible for many persons safety and welfare.

48. The applicant claims he has a mortgage on a property he purchased.  No information was provided to the Tribunal in relation to the amount of the mortgage or the value of the property however there is nothing to stop the applicant either selling the property and paying out the mortgage and returning to China with some Equity or renting out the property through a manager and securing income.

49. The applicant claims that he cannot return to China as his life will be difficult, he may not find a job and he has concern about environmental issues and security.  The Tribunal accepts that many people have concerns about environmental issues and security however does not accept that this risk is greater for the applicant and his family than any other family in China.

50. The applicant is young and skilled.  He has worked in Australia with a Chinese company.  His evidence is that he attends a Chinese church and social group.  He has English skills as well as a good understanding of the Chinese culture and family support in China.  The Tribunal does not accept that he may not be able to access employment in China.

51. The applicant’s children are very young and have spent a short time in Australia.  The Tribunal does not accept that they will not be able to have an acceptable level of care and education in China.

52. The applicant further claims that he may be penalised for having two children.  The Tribunal does not accept this as the Chinese government has always allowed more than one child for country areas in China.  They have also recently in 2016 replaced the one child policy to allow for two children. 

53. The Tribunal is not satisfied that there would be any concerns about the applicants returning to live in China.  It is not uncommon in the global economy for families to live and work overseas.  Some families spend many years in different countries and this does not impact upon their ability to return and live in their country of origin.     

54. The Tribunal has considered all the evidence.

    The correct information

55. The correct information is that the applicant did not sit the IELTS test.  He has given evidence that he does not have sufficient English skills. 

    The content of the genuine document (if any)

56. This is not relevant as no genuine document was available in relation to his IELTS test submitted with the application.  There were previous tests in which he did not meet the requirement.

    The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

57. The applicant would not have been granted the visa if he did not provide relevant evidence of his competent English. 

    The circumstances in which the non-compliance occurred

58. The non-compliance occurred when the applicant was providing information and documents for the grant of a visa.

59. As outlined and considered above the applicant provided evidence that he was suffering from severe, depression, anxiety and stress when he arranged for someone else to sit the IELTS test for him.  The Tribunal has considered his evidence above and is not satisfied that the stress of having to support his young family, his demanding work, his anxiety in relation to his previous failed tests or his desire to stay in Australia is sufficient to excuse his behaviour in providing a bogus document.

    The present circumstances of the visa holder

60. As outlined above the present circumstances of the applicant are that he is working in Australia and paying tax.  He was concerned about getting work in China if he returned and his ability to support his family.  He claims he is settled in Australia and his wife and children are also settled in Australia.  He stated that he has big projects and large building sites he is overseeing.

61. There is nothing to indicate that the applicant will not be able to find employment in China.  If he returns to China he will have improved English language skills and employment experience in Australia.  The applicant has been in Australia on temporary visas until he applied for the current permanent visa.  His children have only been in Australia for a relatively short time and the Tribunal does not consider they are settled.

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

62. His subsequent behaviour is that he has admitted his non-compliance and in response to the Department’s s.107 letter states he regrets his behaviour. 

63. However the Tribunal is satisfied that the applicant provided a bogus document and did not make efforts to give the correct information or correct the bogus document prior to be contacted by the Department and receiving the s.107 letter.  

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

64. There is nothing before the Tribunal to indicate any other non-compliance.

    The time that has elapsed since the non-compliance

65. It has been just over two years since the non-compliance.  The applicant has continued to work.  He has enrolled his children in school and purchased a property.  These are actions that he undertook voluntarily.  In a global economy many families relocate for periods of time for the purpose of work.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

66. There is no evidence of any breaches of the law.  The applicant supplied a police certificate stating there are no disclosable court outcomes against his named.

    Any contribution made by the holder to the community

67. The applicant states he has been in Australia since 2009.  He has studied and worked in Australia.  He is currently working in a responsible position.  He has received remuneration for his employment.  He has provided two references from colleagues who have stated that he is a good worker and an asset to the company.

68. He has two young children who are enrolled in pre-school and school and he attends his local Chinese Christian church.

69. The Tribunal accepts all the above however has weighed it against the gravity of a person in his position providing a bogus document and therefore undermining the integrity of the skilled visa programme.  The Tribunal does not consider his working and moving his family to Australia to be a significant contribution and gives it little weight.

    The Tribunal has considered whether there are persons in Australia whose visas would, or may, be cancelled under s.140.  There are no other persons in Australia whose visas would or may, be cancelled as a result to the cancellation of the applicant’s visa.

1. The secondary applicants’ visas are dependent on the applicant’s (first named applicant) visa.  Their visas would be cancelled under s.140.  It is an intended consequence of the legislation that dependents visas would be cancelled.  They are the applicant’s dependents and the effect would be that they would return to China with their parent.   

2. There are mandatory legal consequences to a cancellation decision.  A decision to cancel would have consequences on the applicant’s future visas that he may apply for.  It could also result in him having to return to China.  The Tribunal has considered the consequences for the applicant and weighed it up against the evidence as outlined above. 

3. The Tribunal has found that the applicant misled the Department by providing a bogus document.  The Tribunal has carefully considered all the evidence he has provided above.

4. The Tribunal gives the behaviour and misleading conduct outlined above indulged in by the applicant significant weight as it indicates an intentional willingness to circumvent the requirements of the Australian Migration Act and Regulations.  The Tribunal is not satisfied that there are any factors that ameliorate this behaviour.

5. 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

6. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 -  Skilled - Independent visa.

7. The Tribunal has no jurisdiction with respect to the other applicants.

   Catherine Carney-Orsborn
   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.

   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.