SUN (Migration)

[2019] AATA 1581

SUN (Migration) [2019] AATA 1581 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhao SUN
Mrs Xia Zhang

CASE NUMBER:  1820061

DIBP REFERENCE(S):  BCC2017/999300

MEMBER:Alan McMurran

DATE:8 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.

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

Statement made on 08 February 2019 at 3:23pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – provided incorrect answers and bogus documents – several previous visa applications – identity documents – unlawful residence – fraudulent academic record – not disclosing previous refusals and exclusions – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 97 – 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 first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was in breach of s.101 (b) and s.103 of the Act, for having provided incorrect answers and for presenting, producing and providing bogus documents. The delegate concluded that the weight of consideration under s. 109(1) was in favour of cancellation of the visa.

3. In considering cancellation, where the information provided by the applicant is found to be incorrect, the Tribunal is required to decide whether the responses provided by the applicant constitute non-compliance, as described in a notice under s.107, consider any response to the notice about the non-compliance, and have regard to any prescribed circumstances, which are referred to and set out below.

4. Section 101 of the Act sets out that a noncitizen 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.

5. Section 103 of the Act sets out that a noncitizen must not give, present, produce or provide to an officer, an authorized 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.

6. The Act defines a “bogus document” in relation to a person as a document that the Minister reasonably suspects is a document that:

   a)purports to have been, but was not, issued in respect to the person; or

   b)is counterfeit or have 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.

7. The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled bearing in mind those necessary considerations set out above and anything relevantly submitted in consideration of the exercise of discretion under s.109.

8. 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 visa was 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 applicant.

9. The applicants appeared before the Tribunal on 31 January 2019 by telephone from Dalian city, Liaoning province, China to give evidence and present arguments. The Tribunal received oral evidence from the applicant and his wife, Xia Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicants were represented in relation to the review by their registered migration agent who also made submissions.

11. The Tribunal had available to it for the hearing the Department’s file[1], the Tribunal’s file, the written submissions made by the applicants and the agent and the oral evidence from the hearing.

    [1] BCC2017/999300

    Background

12. The applicants are both citizens of the People’s Republic of China (China). The applicant is 39 and the second applicant (Mrs Zhang) is currently 42. Both are presently residing and working in Dalian City, China. The applicants have no children, although the second applicant has a child from her first marriage who lives with her parents in China.

13. The applicant’s visa history is set out below. The applicant was issued a Subclass 186 employer nominated scheme visa on 31 July 2014. On 3 August 2015, the applicant applied for Australian citizenship, which triggered an integrity check concerning the correct identity of the applicant.

14. Following an exchange of information between the Department and the applicant concerning the integrity check, the Department issued a Notice of intention to consider cancellation of the 186 visa under s. 107 of the Act (the Notice). The Notice was sent to the applicant on 23 March 2018, and the applicant responded to the notice on 6 April 2018 and 11 April 2018.

15. Following consideration of the circumstances leading to the issue of the Notice and the applicant’s responses, the Department made a decision on 10 July 2018 under s.109 of the Act to cancel the applicant’s186 visa.

16. The applicant has sought review and the Tribunal wrote to the applicant in acknowledgement on 12 July 2018, and despatched a hearing invitation to him on 27 November 2018. The applicant meanwhile departed Australia for China on 18 October 2018 on which date his bridging visa ceased.

17. 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

18. 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.

19. 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, which provides 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.

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

20. 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.

21. The Tribunal has considered the validity of the Notice. 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. 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 complied with the statutory requirements.

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

22. The issue before the Tribunal is whether there was non-compliance in the way described in the 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.

23. The particulars in the Notice identified, in summary, non-compliance in the following respects:

    a)Providing incorrect information for the applicant’s current ENS186 visa lodged in Australia on 5 November 2013;

    b)Providing incorrect information for a 457 temporary work visa lodged outside Australia on 22 November 2010;

    c)Providing incorrect information for a tourist 676 visa lodged outside Australia on 13 September 2010;

    d)Failure to comply with s.103 by providing bogus documents to support the application for the 457 visa, namely:

    i.a certificate from the University of Western Sydney issued 9 March 2002 for the award of a Graduate Diploma in Management (the certificate), and

    ii.a transcript issued 9 March 2002 of an academic record for studies undertaken at University of Western Sydney (the transcript);

24. The applicant provided the Tribunal a copy of the primary decision record which refers to the Notice issued 23 March 2018 in the Department’s file and which contains the following information, namely that:

    a)the applicant has provided as his date of birth 5 March 1979 (1979 birthdate);

    b)on 29 December 2003, using the 1979 birthdate, the applicant applied for a business short stay 456 visa which was granted on 13 January 2004. The applicant entered Australia on 3 February 2004 and departed on 9 February 2004;

    c)on 13 September 2010, the applicant applied for a tourist visa subclass 676 again using the 1979 birthdate. In answer to question 30 and question 35 of the application, the applicant said as follows:

    Question 30: “have you, or any other person included in this application, ever been excluded from or asked to leave any country (including Australia)?” You answered “no”.

    Question 35: “have you, or any other person included in this application, ever:

    obeen in Australia and not complied with visa conditions or departed Australia outside your authorized period of stay?” you answered “no”.

    o“Had an application for entry to or further stay in Australia refused, or had a visa for Australia cancelled?” You answered “no”.

    d)On the basis of this information, the applicant was granted a tourist 676 visa on 17 September 2010. The applicant entered Australia on 24 September 2010 and departed on 2 October 2010.

    e)On 22 November 2010, again using the 1979 birthdate, the applicant applied for a temporary 457 work visa online. In answer to questions in the application, the applicant said as follows:

    Q: “have you or any person included in this application to apply for this visa ever been excluded from or asked to leave any country (including Australia)?” The applicant answered “no”.

    Q: “have you ever had an Australian visa refused or cancelled?” You answered “no”.

    f)On 16 December 2010, the applicant provided by email the following documents in support of the temporary 457 work visa:

    i.Certificate from the University of Western Sydney awarding the applicant a Graduate Diploma in Management on 9 March 2002, and which document does not specify a birthdate;

    ii.a transcript from the University of Western Sydney issued 9 March 2002 providing details of units of study undertaken by the applicant as part of the Graduate Diploma and which also does not specify a birthdate.

    g)On the basis of this information, the applicant was granted a temporary work (subclass 457) visa on 2 March 2011. The applicant entered Australia on 11 June 2011, departed 30 December 2011, and returned as a holder of this visa on 24 July 2012;

    h)On 5 November 2013, again relying upon the 1979 birthdate, the applicant applied for an ENS subclass 186 visa, and provided the following information with the application online:

    i.that the applicant’s highest recognised qualification obtained was “Diploma-Graduate Diploma in Management-University of Western Sydney-from 01 February 1999 to 30 November 2001”

    ii.in answer to a specific question the applicant said as follows:

    Q: “Has any applicant ever been excluded from or asked to leave any country (including Australia)?” You answered “no”.

    i)On the basis of this information the applicant was granted an ENS subclass 186 visa on 31 July 2014;

    j)On 3 August 2015, the applicant lodged an application for conferral of Australian citizenship, and stated his name and date of birth, using the 1979 birthdate;

    k)The New South Wales Roads and Maritime Services (RMS) advised the Department that the applicant was identified from facial recognition technology as the same person with the same name (Zhao Sun) but with a given date of birth of 5 March 1981 (the 1981 birthdate);

    l)The applicant was also identified as having the same Chinese passport number 145294115 used with the 1981 birthdate;

    m)With reference to the same passport number, the Department identified the applicant with a previous record held by the Department, using the 1981 birthdate, and which department record revealed that:

    i.the applicant first arrived in Australia on 7 November 1998 as a holder of a student subclass 560 visa;

    ii.the applicant was granted a further student subclass 560 visa on 4 May 1999, and again on 10 June 1999, valid for stay until 15 March 2001;

    iii.the applicant studied secondary senior years 10, 11, 12 from 20 July 1999 to 19 December 2000 and Certificate IV in Business at Supreme Business College from 14 August 2000 to 14 August 2001;

    iv.the applicant applied on 12 March 2001 for a further student 560 visa which was refused on that date due to poor record of attendance and the Department declaring him not to be a genuine student; the applicant was granted a Bridging Visa A which expired on 10 April 2001, following which date the applicant became an unlawful non-citizen;

    v.the applicant remained unlawful from 10 April 2001 until he voluntarily departed Australia on 10 March 2002, where he became subject to PIC 4014 which served to exclude the applicant from being granted a further visa for Australia for a period of three years from the date of his departure (in effect until 10 March 2005).

    n)On 5 February 2016, the Department requested information and copies of previous passports and Chinese national identity card and personal particulars from the applicant;

    o)On 9 May 2016 the applicant provided an uncertified copy of a Chinese passport with a different number (G04841375) showing the 1979 birthdate and issued 24 June 2002; the applicant also provided a Chinese resident identity card, with the 1979 birthdate, and a Form 80 completed by him which referred to English language studies from April 1999 to June 1999 and diploma in Management from University of Western Sydney; the applicant also listed previous Australian visas as 457 working-June 2011 to December 2011 and 676-business-September 2010 to October 2010.

    p)On 24 May 2016 the Department again requested further information in support of the citizenship application. On 16 June 2016, the applicant again provided his Chinese passport with the 1979 birthdate and a later passport dated 12 April 2005 and a passport issued 24 February 2010, all with the 1979 birthdate; the certificate from the University of Western Sydney, the transcript from the University of Western Sydney (both issued 9 March 2002), a certificate of English proficiency and a Chinese resident identity card with the 1979 birthdate;

    q)On 10 February 2017, the applicant was invited to comment on adverse information in relation to the application for Australian citizenship.

    r)On 25 April 2017 the applicant responded advising that he had first arrived in Australia in 1998 and provided copies of contact details for a specialty language Centre, a link to the University of Western Sydney website, undated photographs taken in the period 1998 - 2001, an envelope addressed to the applicant dated 22 December 1998 in Australia, a letter from a dental surgeon in Australia dated 16 January 2001, a Commonwealth bankcard in the name of the applicant, an NRMA card expired 2001, and access card expired 2004 and contact details for persons the applicant had met in Australia in 1999 and 2001. The applicant did not provide any details which included his date of birth.

    s)On 12 December 2017, the Department confirmed it had some evidence the applicant was located in Australia between 1998 and 2001 and requested identity documents used during that period.

    t)On 20 December 2017, the applicant provided a Statutory Declaration explaining that he had “lost the oldest passport and student ID document”.

    u)The decision record informed the applicant that the person named Zhao Sun with the 1981 birthdate and the 1979 birthdate was according to its records “the same person” and that the applicant had provided incorrect information and bogus documents to the Department; the applicant was also informed that the New South Wales RMS had finalised its investigations and concluded the applicant with the 1979 birthdate was the same person as the person named with the 1981 birthdate;

    v)Question 30 answered by the applicant for the tourist visa lodged on 13 September 2010 was incorrect as the applicant was excluded from Australia under PIC 4014 when he departed on 10 March 2002 (effective until 10 March 2005);

    w)Question 35 was also answered incorrectly as the applicant had overstayed his bridging visa from 10 April 2001, having been refused a student visa on 12 March 2001;

    x)The electronic application for the 457 visa also contained incorrect information as the applicant was excluded from Australia after his departure on 10 March 2002 (until 10 March 2005) and the applicant had also been refused the further student subclass 560 visa on 12 March 2001;

    y)The electronic application for the 457 visa and attached Graduate Diploma and Academic Record from the University of Western Sydney was also incorrect information as the qualification and academic record were fraudulent and there were no records of the applicant having studied in Australia during this period using the 1979 birthdate;

    z)The electronic application for the 186 visa and attached Graduate Diploma and Academic Record from the University of Western Sydney was also incorrect information as the qualification and academic record were fraudulent and there were no records of the applicant having studied in Australia during this period using the 1979 birthdate;

    aa)The electronic application for the 186 visa also contained incorrect information as the applicant had been excluded from Australia following his departure on 10 March 2002 and the application of PIC 4014 until March 2005.

25. The applicant made two responses to the Notice. On 3 April 2018 the applicant’s representative requested an extension of time to reply to the Notice, which was refused.

26. On 6 April 2018, the representative sent an email to the Department attaching a Statutory Declaration with a statement made 6 April 2018 by the applicant.

27. In his statement, the applicant concedes the following matters:

    a)his correct date of birth is 5 March 1979 not 5 March 1981;

    b)that he was refused a visa on 12 March 2001 while using the 1981 birthdate because of low attendance as a student;

    c)that he had “arranged a person to make a Graduate Diploma and Academic transcripts for me and ascribed to it that it was the degree I obtain from an Australian university”;

    d)that in 2003, he had applied for a new passport using the 1979 birthdate;

    e)that he had entered Australia in December 2003 on a tourist (short stay business) visa obtained with his new passport in order to attend an international furniture fair at Darling Harbour, and had stayed in Australia for six days;

    f)that he had again applied for a tourist visa in 2010 using another passport with the 1979 birthdate; that he was granted the visa on 17 September 2010 which he used for a short stay in 2010 where he met his sponsor;

    g)that he was sponsored for a 457 visa for which he made application on 22 November 2010 using the 1979 birthdate; that he told the agent making the application about his immigration history including “the fake diploma to the Department”;

    h)that he provided the documentation to the agent in support of the information for the 457 visa, including the fake diploma and academic transcript;

    i)that in around August 2013 he decided to apply for a subclass 186 visa and sought assistance from the same agent who had obtained the 457 visa; the agent declined to act and the applicant found a new representative to make the application; the applicant gave the new representative the information he had previously given for the 457 visa application, including the incorrect information about his previous visa history and the fake documents.

1. At the hearing, the Tribunal discussed at length with the applicant the contents of the statements in the Statutory Declaration. The applicant’s explanations for those statements are referred to below.

2. The Tribunal considered the applicant’s oral evidence and reviewed the information and statements in his Statutory Declaration. The Tribunal has had regard to the requirements in section 101 (b) of the Act and the definition of bogus documents in section 103. Having reviewed that evidence, the Tribunal is satisfied that the applicant provided incorrect answers as set out above, and as he has admitted in his Statutory Declaration, had “arranged a person to make a Graduate Diploma and Academic transcripts for me and ascribed to it that it was the degree I obtain from an Australian university”, knowing that the Diploma and the transcripts were not issued to him and had been altered to reflect his name.

3. The Tribunal finds as a result that there was non-compliance as described in the section 107 notice, and the Tribunal is satisfied as to the following findings:-

   a)that the applicant’s correct date of birth is 5 March 1979, and the applicant is the same person as that identified in the Department’s records with the birthdate 5 March 1981;

   b)that the applicant has provided incorrect information to the Department as set out in the Notice and referred to above;

   c)that the applicant has provided bogus documents to the Department as set out in the Notice and referred to above;

4. The Tribunal is further satisfied again on the basis of the information provided by the applicant and the admissions made by him and set out above that:

   a)the applicant entered Australia on 3 February 2004, departing 9 February 2004, while subject to exclusion under PIC 4014;

   b)that the applicant obtained a visa for short stay entry in 2004 and again in 2010 without disclosing that he had been refused a visa previously and excluded under PIC 4014 for a period of three years;

   c)that the applicant obtained a subclass 457 visa on 2 March 2011 having submitted incorrect information to the Department together with bogus documents in support of the visa application;

   d)that the applicant obtained a 186 visa under the employer nomination scheme on 31 July 2014 having again submitted incorrect information to the Department together with bogus documents in support of the visa application;

5. The Tribunal finds that there was non-compliance with s.101 and that the applicant provided incorrect answers (as now corrected by him) and referred to by him in his Statutory Declaration.

6. The Tribunal further finds on his own admissions that the applicant has not complied with section 103 by providing bogus documents (false diploma and academic transcripts) to the Department on several occasions.

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

   Should the visa be cancelled?

8. 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).

9. 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.

10. 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.

11. Dealing with each of the prescribed factors in turn, the Tribunal finds as follows.

    The correct information

12. The correct information is that the applicant was refused a student visa on 12 March 2001, and that he became an unlawful noncitizen from 10 April 2001 until his departure on 10 March 2002. The correct information is that the applicant was subject to PIC 4014 which excluded him from re-entering Australia in the period 10 March 2002 until 10 March 2005.

13. The applicant entered Australia on 3 February 2004, departing 9 February 2004 while subject to the PIC 4014 exclusion which he failed to disclose and having been refused a visa which he also failed to disclose.

14. The applicant again entered Australia on 24 September 2010, departing 2 October 2010, having failed to disclose that he had been refused a visa previously and excluded from entering Australia under PIC 4014 in a three-year period from April 2002 to April 2005.

15. At the hearing, the applicant explained that before he left Australia in March 2002, his father had insisted that he could not return without “a degree or higher qualification from University”. The applicant said that after pressure from his father, the applicant had arranged for a friend’s graduate diploma and academic transcript to be copied, in order to produce fake documents certifying an academic achievement in his name from a University.

16. The applicant explained that he had not been happy in Australia and wanted to return to China, but needed his father’s approval. The applicant said that he was ashamed of his behaviour for obtaining the false documents and “never mentioned it” upon his return to China. He said that from 2002 until 2010 he worked successfully. He said that he needed to renew his passport in 2002 so he could travel to other destinations around the world and this time he made his own application for the passport and “corrected” his birthdate from the 1981 birthdate to the 1979 birthdate. Thereafter, the applicant said that he continued to use the corrected birthdate on subsequent passport applications.

    The content of the genuine document (if any)   

17. The applicant has conceded that the certificate from the University of Western Sydney awarding him a Graduate Diploma in Management on 9 March 2002 did not apply to the applicant and was fraudulent.

18. The applicant has also conceded that the academic transcript from the University of Western Sydney in support of the Graduate Diploma from the University of Western Sydney did not apply to the applicant and was fraudulent.

19. The correct information is that the applicant did not have a Graduate Diploma in Management or supporting Academic Transcript from the University of Western Sydney in March 2002 and that the content of those documents relate to another person.

20. In relation to his passports, the applicant said at hearing that the 1981 birthdate was an administrative error first created by his father, and that he never intended to deceive the Department with the wrong information or by using the 1981 birthdate. When asked about how the error came about, the applicant conceded that he knew when his father lodged the application for his first passport that the date was incorrect, and he challenged his father about it. His father however insisted that he would not get the student visa otherwise and that it was necessary to use the incorrect birthdate. The applicant said he was unable to do anything about it.

21. The Tribunal is satisfied that on the available evidence the applicant knew that the 1981 birthdate was incorrect. The Tribunal is also satisfied that at the time the information was provided by the applicant for the short stay visa in 2004 and again in 2010 that the applicant was aware of and responsible for the incorrect information contained in both those applications concerning his previous student visa refusal and exclusion of the applicant from Australia for the specified period.

22. The applicant said at hearing that those applications had been prepared by travel agents and were done on a group basis and in respect of which he was not required to sign any documents. The applicant accepted however that the information was provided on the basis of what was provided to those travel agents on his behalf, and for which he was responsible.

23. At the hearing, the Tribunal found the applicant’s evidence unconvincing to the effect that he maintained he had no responsibility for the provision of information supporting visa applications made on his behalf. The Tribunal is satisfied that the applicant was aware of the previous history and its importance, but failed to ensure the true history was disclosed in the making of those applications to the Department for fear that the visa applications might then be unsuccessful.

24. The Tribunal is also mindful of the applicant’s acknowledged history where he knowingly overstayed his bridging visa after his student visa was refused in 2001 and his preparedness to ignore the laws of Australia.

    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

25. The Tribunal is satisfied that the decision to grant the applicant a short stay 456 business visa on 13 January 2004 would not have been granted had the Department realised the applicant was subject to exclusion under PIC 4014. The applicant had remained unlawful for almost a year and the exclusion was not due to a minor or insignificant breach of the applicant’s bridging visa conditions.

26. In 2010, when the applicant applied for a tourist visa 676, the applicant did not provide the Department with the opportunity to consider all the relevant and correct information concerning the applicant’s visa history. It is quite possible that if made aware the applicant had re-entered Australia on the basis of incorrect information, the 676 visa may also have been refused. The Tribunal finds the applicant was aware of the circumstance and chose not to inform the travel agents arranging the visa of the correct information to put before the Department, so as not to prejudice the visa outcome

27. In 2011, again the applicant chose not to provide the correct information provided to the Department on the basis that it might prejudice the outcome of his 457 visa application. The applicant also chose to provide to the Department documents which he knew to be false. The applicant believed at the time he needed a graduate diploma or higher to qualify for the sponsored occupation. In the event however, the applicant could have relied upon his existing experience of five years or more in the stated occupation. The Tribunal is unable to say whether the Department may have approved the 457visa application based on the applicant’s prior experience over an eight-year period in China and without the need for the tertiary qualifications.

28. The Department however was unable to consider the correct information and accepted the supporting false documentation as evidence of the applicant’s qualifications and in circumstances where the applicant knew that to be the case. The applicant said at hearing that he told the law firm who made the application for him about his true visa history. The applicant said he was told he had to have a university degree and they asked him to provide the documents which he duly gave them.

29. The applicant said that he did not authorise the representative to submit the fraudulent documents with the application, but he conceded that he knew when he gave them to the representative that they would be used. The Tribunal is satisfied that the applicant knowingly submitted the documentation with a view to obtaining the visa and for fear that it might be refused if he revealed his truthful visa history.

30. The applicant said that when he sought assistance from the representative with an application for an ENS 186 visa, the representative refused assistance and declined his request. [2]The applicant said he was “legally advised” not to correct the information which he knew was incorrect when making the application for the 186 visa, so he continued “to provide the incorrect information for the new application”.[3] Again, the Tribunal is satisfied that in submitting the application for the 186 visa, the applicant did so knowingly with a view to obtaining the visa and without providing correct information and documentation for fear that if he did so, his truthful visa history might be revealed and he might not obtain the visa.

    [2] Statutory Declaration at paragraph 94.

    [3] Ibid at par 97

31. The applicant confirmed as much at the hearing when asked about the circumstances by the Tribunal, and in endeavouring to explain his situation said that he did not know what to do and became “frustrated” and “in a loss”.[4]

    The circumstances in which the non-compliance occurred

    [4] Ibid at par 98.

32. The Tribunal has outlined above the circumstances confirmed by the applicant at hearing as to the non-compliance. The Tribunal is satisfied that the applicant failed to disclose his visa history when he re-entered Australia as a business visa tourist in 2004 and again in 2010.

33. The Tribunal does not accept the explanation given by the applicant that those two visa applications were made by someone on his behalf, that it was a group application for the business tour and that he was only in Australia for a short period on each occasion. The Tribunal finds that the applicant was aware at all times of his visa history and that it was required to be given truthfully in support of his visa applications and that he chose not to correct the information for fear that his visa applications might be unsuccessful.

34. At the hearing, the applicant was asked about how the provision of the incorrect information came about, and the applicant thought that in particular, the solicitor who lodged the 457 application was responsible. He said he had informed the solicitor of his true visa history, but nonetheless the solicitor told him to withhold the truth. He conceded however that he had provided the fraudulent documents with the intention of supporting his visa application and did not know what else to do. The applicant said he simply accepted advice, although reluctantly, to continue to provide the incorrect information and fraudulent documents saying that he was “legally advised that we were not allowed to correct the incorrect information”.

35. The Tribunal provides no weight to this explanation as being acceptable or reasonable in the circumstances, where the applicant at all times new the truthful visa history and withheld it from the Department.

    The present circumstances of the visa holder

36. The applicant said at hearing he was now living and working in China with his wife. He said he was sorry for the mistakes of his past and the Tribunal accepts that the applicant is genuinely remorseful and has now made full admissions. He says that he is not a bad person and has now matured, whereas at the time when these events initiated in 2002, he was under the influence of his father and both inexperienced and immature. The Tribunal gives the applicant some weight for this admission and concession and for the applicant’s genuine contrition. He says he can make some contribution to Australia.

37. The Tribunal is satisfied the applicant has reasonable opportunities for work continuing in China as does his partner. The applicant has returned to live and work in China with his wife. There is no indication that he is unable to continue to do so and in fact he has indicated that he is quite successful in his life in China.[5]

    [5] Statutory Declaration at par 49

38. The applicant’s wife has a history of working successfully in a hospital at Dalian City, where she has been promoted. The applicant said that she is doing well. The Tribunal asked if he had a strong desire to migrate given he indicated in his Statutory Declaration (at paragraph 49) that he is life in China “is quite good”. The applicant said “I have a good life as well as my own houses and cars. So, in fact I do not have strong desire to migrate live abroad.”

39. In discussing this with the applicant at the hearing, the applicant said that he would now like to return to Australia. He said he is buying a property in Brisbane, which is presently unoccupied and where he would intend to live upon his return. He said he would like to be able to be free to travel to and from Australia as he chose for business and while living here. He said that he and his wife had an intention to work in regional Australia to conduct an export agricultural business. When asked about this, the applicant said he thought Adelaide would be a good location and regionally, to work in the Barossa Valley. The applicant however provided no information whatsoever about this proposal or any evidence in support and the Tribunal places little or no weight upon this consideration.

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

40. The Tribunal notes that the applicant allowed the incorrect information to be used consistently over a lengthy period from 2003 until 2015. Even when the opportunity arose to correct information with the Department, the applicant continued to provide the fraudulent documents and the incorrect information, and on 9 May 2016 again provided the Department with the fraudulent diploma from the University of Western Sydney and did not correct the information concerning the wrong answers given for the short-term business visas in 2004 and 2010, the 457 visa in 2011 and the 186 visa in 2013.

41. The only explanation provided by the applicant is that he was advised to do so by his representative and he accepted that advice, believing that it was necessary in order for him to fulfil his objective of obtaining the visas and ultimately citizenship. This was more important to him than correcting the record and allowing the Department to consider his situation on its genuine merits.

42. The Tribunal notes that the applicant did not volunteer the truth and to correct the information until he was confronted with the Notice on 23 March 2018. It was only then on 6 April 2018 that the applicant set out the facts in his Statutory Declaration. But for the intervention and discovery by the RMS through the facial recognition technology, the applicant’s true circumstances might never have been revealed.

43. The Tribunal places significant weight upon the unacceptable conduct and behaviour of the visa holder throughout the history of his visa applications, which has extended over many years, was deliberate and intentional in order to effect the applicant’s objective to obtain the visas and ultimately citizenship, and was in breach of the requirements in ss.101 and 103.

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

44. The Tribunal is not aware of other instances of non-compliance by the visa holder except for those disclosed during the course of this application and review, and the information provided by the applicant himself.

    The time that has elapsed since the non-compliance

45. The Tribunal has referred above to the lengthy period of non-compliance, which effectively dates from the application in 2003 for the short-term business tour visa. The applicant has referred to the length of time he has resided in Australia since 2011. The Tribunal is mindful however that this particular consideration refers to the time that has elapsed since non-compliance, not the time of the applicant’s residence. The non-compliance initially occurred in 2003, when the application was made for the tourist visa using the 1979 birthdate. That period is considerable and the applicant has had many opportunities since then to correct the record, but has failed to do so.

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

1. There are no known other non-compliance issues or breaches of the law before the Tribunal.

   Any contribution made by the holder to the community.

2. The applicant has made no submissions about any contributions made during his period of residence in Australia to the Australian community. The applicant says at hearing that he and his wife can make a contribution. The applicant however has not identified any facts, matters or circumstances which might be relevant to this consideration and no probative evidence is presented to support that contention.

3. The Tribunal is satisfied that the applicant’s objective is one of self-interest so that he can live and work in Australia and overseas as he chooses and travel freely, and as his occupation may require from time to time.

4. The Tribunal is satisfied that there is nothing in relation to this factor which would warrant the Tribunal giving consideration to not cancelling the visa.

5. The Tribunal must also have regard to the lawful government policy as set out in the Department’s procedures advice manual and which refers to matters such as the consequences of cancelling the visa, any international obligations and other relevant matters.

   Mandatory legal consequences

6. If the applicant’s visa is cancelled, unless or until he is granted another visa, he will not be able to return to Australia lawfully. As a result of the cancellation, the Tribunal acknowledges there may be restrictions on the applicant’s future travel and future visa applications in Australia as a consequence. The applicant will lose any entitlements he might otherwise have gained as an Australian citizen. There are no provisions however in the Act which prevent the applicant from making a subsequent valid visa application at some future time, should he choose to do so.

   Whether there would be consequential cancellations under section 140

7. The applicant states that if his visa is cancelled, he and his wife will have to remain in China. The Tribunal is mindful that the cancellation of the wife’s visa is a matter which follows consequentially as referred to above under section 140 of the Act and no decision has been involved in that visa cancellation process. The Tribunal has no jurisdiction in respect of a section 140 automatic cancellation.

8. The applicant has said that his wife remains employed at a hospital in Darlian City where she has been employed previously in the medical profession. There is no indication of any distress caused by the cancellation decision which might be suffered by the applicant’s wife. At the hearing, the applicant’s wife referred to the pending purchase of a property in Brisbane, which would not be able to proceed if the cancellation remains.

9. Weighing all the factors in consideration, the Tribunal does not view this as a persuasive consideration in determining whether or not the visa should be cancelled.

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

10. Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of any non-refoulement obligations.

11. The Tribunal is not aware of any child whose interests might be affected by the cancellation decision. The applicant’s wife has a child from a previous relationship who lives with the wife’s parents in China. There is no evidence that the family will not continue as a single entity and that the applicant and his wife will not be able to support the child. The applicant says that he and his wife have a good relationship, love one another and will support one another and that overall, this relationship will not be affected by the cancellation.

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

12. The Tribunal acknowledges that the applicant has spent some years living in Australia since 2011. The Tribunal accepts that the applicant has established some ties in Australia, although not permanent and that he has a comfortable residence in China. The applicant did not raise any issues concerning his relocation to China after leaving Australia in October 2018.

13. In light of his personal history and circumstances outlined to the Tribunal in the statutory declaration and in his evidence at the hearing, the Tribunal is not aware of any other relevant matters which would cause any significant degree of hardship to the visa holder, other than the ordinary dislocation occasioned by having to relocate, including the necessity to abandon an intention to purchase real estate in Brisbane. These are not circumstances in this Tribunal’s opinion that would weigh heavily in favour of a decision not to cancel the visa when taking into account all of the relevant facts matters and circumstances.

    Summary

14. The Tribunal has carefully reviewed all of the information before it and taken into consideration the totality of the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect information in relation to answers concerning the refusal of a visa application and his subsequent exclusion from Australia for a three-year period. The Tribunal has also found that the applicant provided fraudulent documents to support several visa applications.

15. The Tribunal has found that the applicant intentionally used that incorrect information and the fraudulent documents for fear that if he did not do so, he would not be issued the visas.

16. The Tribunal has found that despite opportunities to correct the information, it was not until March 2018 after he was served with the Notice of intended cancellation by the Department, that the applicant made an attempt to correct the record and apologise for his previous behaviour concerning his visa applications. The Tribunal has found that it does not accept the applicant’s explanation that he did so because of poor judgment or negligent advice from his representatives. The Tribunal has found that if it were not for the intervention of the RMS and the facial recognition technology, the applicant’s deception caused by the incorrect birthdate and the applicant’s true visa history would not have been uncovered and no admissions would have been made.

17. The Tribunal has accepted that the applicant is now contrite and wishes to apologise for his behaviour. The Tribunal has accepted the apology as sincere and genuine. The Tribunal has also accepted that there may be some consequences following the cancellation of the applicant’s visa, as referred to above.

18. Against these considerations, the Tribunal finds the circumstances in which the non-compliance occurred to be significant. The applicant took considerable steps to obtain bogus documents with a deliberate intention of misleading the Department and obtaining a visa to which he knew he was not entitled. Notwithstanding that he raised the issue with his representative, he allowed the deception to continue for an extended period over many years until he was finally served with the Notice of intention to consider cancellation.

19. While there are some reasons in the exercise of discretion in favour of the applicant, the Tribunal finds that the overwhelming evidence leads the Tribunal to the view that the nature of the breaches, continuing for a prolonged period and the circumstances in which they occurred without the applicant taking any accepts steps to correct the record with the Department and the steps taken by him to falsify information, without which he would in the more likely circumstance not have been entitled to the skilled visa, outweigh those considerations.

20. 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

21. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

22. The Tribunal has no jurisdiction with respect to the other applicant.

    Alan McMurran
    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.