Lee (Migration)

[2020] AATA 5889

Lee (Migration) [2020] AATA 5889 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun-Nan Lee

CASE NUMBER:  2011328

DIBP REFERENCE(S):  BCC2020/1697200

MEMBER:Kira Raif

DATE:8 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 08 December 2020 at 10:54am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – incorrect answer in a visa application – bogus document – different facial images on IELTS test form – applicant did not undertake the specified test – migration agent arranged by applicant’s employer – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 99-105, 107, 109, 140
Migration Regulations 1994, 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 applicant’s Subclass 010 (Bridging A) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Taiwan, born in May 1973. He made an application for a Student visa and was granted a Bridging A visa in association with that application. On 4 June 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, Notice) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act in relation to a previously held visa. The primary decision record indicates that the applicant did not respond to the NOICC and his visa was cancelled on 6 July 2020.

3. The applicant appeared before the Tribunal on 8 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

6. Section 107A provides that possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.

   Did the notice comply with the requirements in s.107? 

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and s. 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 17 August 2015 the applicant made an application for a Temporary Work (Skilled) Subclass 457 visa. In that application the applicant stated that he had undertaken an English test in the past 36 months and gave details of an IELTS test, including the date of the test, the test reference number and the country where the test was undertaken. The applicant gave details of the test scores in relation to the four test components. The applicant also signed a declaration in which he stated that the information he provided in the form was complete, correct and up to date.

11. The applicant included with his application an IELTS test report form relating to the test undertaken on 18 October 2014. The applicant was granted the Subclass 457 visa on 3 September 2015 on the basis of that application.

12. The primary decision record indicates that since the grant of the Temporary Work visa, integrity checks were undertaken by the Department and it was found that the IELTS test report form which was provided by the applicant was not genuine. The Department conducted an investigation through the facial identification facility utilising the applicant’s electronic images available on the Department’s system and comparing these to the facial image on the IELTS test report form. The facial comparison report indicates that electronic images that have been compared are not of the same person. The delegate concluded that the IELTS test report form was a bogus document and that the applicant gave an incorrect answer on the application form in relation to undertaking the English test.

13. In his written evidence to the Tribunal the applicant claims that he submitted the documents to the agent and had no idea what was submitted on his behalf. The applicant does not appear to dispute that the IELTS test result was a bogus document, as he claims he was unaware he had to undertake the language test and did not do the test.

14. In oral evidence the applicant told the Tribunal that this was all arranged by his previous employer and migration agent. The applicant states that the agent missed the deadline for lodging the application and tried to extend his visa. They told him that they would do whatever was needed and he did not need to worry about it. The applicant states that he was new to Australia and did not know about Australian visa laws and he relied on others.

15. However, the applicant concedes in his oral evidence to the Tribunal that he did not undertake the test in October 2014. While the applicant claims the fraud was committed by his agent, that he did not sign any forms and that he is a victim of fraud, the Tribunal is mindful that under s. 99, information provided on behalf of the applicant is taken to be information provided by the applicant.

16. Having regard to the applicant’s evidence, the Tribunal finds that the applicant did not complete the IELTS test referred to in his Business visa application. The Tribunal finds that the applicant completed the application form in relation to his Business visa in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

17. The Tribunal further finds that the IELTS test report form which was submitted with the Business visa application was a bogus document because it is counterfeit or had been altered by a person with no authority. The Tribunal finds that the applicant had given, produced or provided a bogus document or caused such document to be given, produced or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

18. For these reasons, the Tribunal finds that there was non-compliance with ss. 101 and 103 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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

21. The correct information is that the applicant did not undertake an IELTS test in October 2014 and did not obtain the results which he specified in his application for the subclass 457 visa.

    The content of the genuine document (if any)

22. The content of a genuine document would not show that the applicant had completed an IELTS test in October 2014 with the claimed results.

    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

23. It is a requirement for the grant of the Subclass 457 visa that a person must be proficient in English. To evidence his English proficiency, the applicant had provided the results of the IELTS test. The Tribunal finds that the decision to grant the Subclass 457 visa was based, partly, on incorrect information and a bogus document. However, the visa that is the subject of this review is a Bridging A visa. That visa was granted on the basis of the applicant’s application for a Student visa. The applicant was not required to evidence his English proficiency to be granted the Bridging visa. The Tribunal finds that the grant of the visa that is the subject of the cancellation was not based on incorrect information or a bogus document.

    The circumstances in which the non-compliance occurred

24. In his written evidence to the Tribunal the applicant states that he submitted the documents to the agent and did not know what the agent submitted on his behalf. The applicant states that when he made the application for the Business visa, the agent asked for many documents but did not tell him about the IELTS test and he did not think he had to do the language test as he had completed the qualifications in Australia. He thought he could trust the agent and did what the agent told him. His employer was insistent that he use that agent and he felt he had no choice, also the employer arranged the payment and had direct contact with the agent. The applicant states that he did not sign any documents when making the application which he thought was “weird” but his boss told him to leave it with the agent. It was only after he applied for the permanent visa that he realised fraudulent documents were submitted and the agent then refused to take his calls or help him. Other agents also told him there was no case and he was fired from his employer and not given superannuation and other documents by the employer. The applicant states that he is a victim and if he knew he had to do the English test, he would have done it.

25. In oral evidence the applicant also said that his employer and migration agent took charge of the visa process and told him not to worry about things and he relied on them completely because he did not know the Australian laws. The applicant told the Tribunal that he was not the one who provided incorrect information. The Tribunal does not accept the applicant’s evidence. The Tribunal is of the view that the applicant had the responsibility to check the content of his application before submitting it. The applicant had the responsibility to ensure the application contained correct information and no bogus documents. The applicant told the Tribunal that he did not sign the form. He appears to have been content to rely on others in preparing the application for him, which included the provision of bogus documents and incorrect information, as long as he could extend his stay in Australia. The Tribunal does not accept that the applicant had no choice but to make the application because his employer needed him. The applicant could have refused to be part of the process which involved incorrect answers and bogus documents.

26. The applicant told the Tribunal that his employer was not paying on time and he could not leave the employer at the time his application was made. That appears to suggest that the applicant was aware of the fraud but preferred to remain with the employer.

27. The applicant ultimately told the Tribunal that he “tried to object” to what his employer and migration agent were doing. He said that he wanted to object to the provision of fraudulent information but they told him not to worry about it. That claim contradicts the applicant’s evidence that he was unaware of the fraud until his visa was cancelled and not involved in it. The applicant’s evidence that he wanted to object but went ahead with the visa anyway suggests that the applicant was aware of the provision of incorrect answers and bogus documents and was complicit in the fraud.

28. The Tribunal finds that the applicant was aware of the fraud at the time his application was being prepared and submitted. The Tribunal has formed the view that the applicant was complicit in the fraud – being aware of it and agreeing for the application to go ahead on the basis of incorrect information and a bogus document. The Tribunal does not accept that the applicant was ignorant of what was in his application. Rather, the applicant appears to have been content for incorrect answers and bogus documents to be provided on his behalf because he wanted to retain his employment and remain in Australia. The Tribunal does not accept the applicant is an innocent victim of the fraud as he now claims. The Tribunal has formed the view that he was complicit in the fraud. The Tribunal finds that the provision of incorrect answers and bogus document was done deliberately and knowingly with the aim of obtaining the visa.

    The present circumstances of the visa holder

29. The primary decision record refers to the visa applicant entering Australia in October 2011 and making several trips out of the country since that time. The delegate notes that the applicant’s partner is also in Australia and had made an application for a Student visa in September 2019, with the applicant as her dependent family member. That application was refused in October 2019 and is presently before the Tribunal. The applicant told the Tribunal that this relationship has ended and his intention is to leave Australia while his former partner wants to stay in Australia.

30. The applicant told the Tribunal that he has been trying to leave Australia but it is difficult to make a flight booking and the tickets are expensive and it is difficult to travel due to Covid.

31. The applicant told the Tribunal that he presently holds a Bridging E visa. He indicated his intention to inform the Tribunal dealing with the Student visa that the relationship has ended.

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

32. Nothing adverse is known to the Tribunal about the applicant’s subsequent behaviour concerning his obligations under the Act.

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

33. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

34. The application for the Subclass 457 visa was made in August 2015. The Tribunal finds that more than five years passed since the non-compliance.

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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community.

36. The applicant refers to his skills as a masseuse and he states that he helped many people, which he considers to be a contribution. The Tribunal is prepared to accept that the applicant has made a contribution to the community through his employment.

37. 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.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

38. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. The Tribunal is mindful that the applicant is presently a holder of a Bridging E visa and that would be unaffected by the cancellation of the Bridging E visa.

39. If the applicant’s visa is cancelled, there may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications.

    Whether there would be consequential cancellations under s.140

40. The primary decision record indicates that the applicant’s partner is a holder of a Bridging B visa and that visa would not have been affected by the cancellation of the applicant’s Bridging A visa. In any case, the applicant’s evidence to the Tribunal is that he is no longer in a relationship. The Tribunal finds there are no persons whose visas would be subject to a consequential cancellation under s. 140.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

41. The applicant told the Tribunal that there are no children who would be affected by the cancellation of his visa. The applicant told the Tribunal that he would not be subjected to any form of harm or persecution in his home country and there is no evidence before the Tribunal that Australia’s non-refoulement obligations arise in this case. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

42. The applicant expressed his remorse for the past conduct and the Tribunal acknowledges the applicant’s evidence.

43. The applicant told the Tribunal that his relationship with his partner has broken down. The primary decision record indicates that the Bridging A visa in question was granted to the applicant because he was included in the Student visa application made by his partner and he is no longer in that relationship. That means that the applicant is no longer a member of the family unit of the primary visa applicant and may no longer be entitled to the Bridging A visa.

1. The applicant told the Tribunal that he wants to return to his home country but cannot leave due to Covid. The Tribunal acknowledges that evidence. The applicant may wish to extend his Bridging E visa to enable him to leave the country at an appropriate time. The Tribunal is mindful that whether the applicant’s Bridging visa A is reinstated, or whether he continues to hold a Bridging E visa, the applicant is able to leave Australia and the Bridging E visa would not be affected by the outcome of this review. Thus, the Tribunal does not consider that there will be any practical difference whether the applicant holds a Bridging A or a Bridging E visa. The Tribunal does not consider that any hardship would be caused to the applicant by the cancellation of his visa.

2. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa because he had not complied with s. 101 and s. 103 of the Act. Contrary to the applicant’s suggestions the Tribunal has formed the view that the applicant was aware of the fraud and complicit in it.

3. The Tribunal acknowledges that considerable time passed since the breach and accepts that the applicant has contributed to the community through his employment. The Tribunal has also found that the decision to grant the visa was not based on incorrect answers or the bogus document. However, the Tribunal places greater weight on the circumstances in which the non-compliance occurred, as the Tribunal has formed the view that the applicant had deliberately engaged in fraud in order to extend his visa and employment in Australia. The Tribunal has formed the view that there would be no hardship to the applicant if the visa is cancelled. The Tribunal also placed weight on the fact that the applicant was granted the Bridging A visa on the basis of being a member of the family unit of his partner and included in her application for a Student visa and the applicant’s evidence to the Tribunal is that the relationship has ended, so that the applicant may no longer be entitled to be holding a bridging visa.

4. 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

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Kira Raif
   Senior Member