Wu (Migration)
[2019] AATA 6149
•17 October 2019
Wu (Migration) [2019] AATA 6149 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Lei Wu
Mr Zhiqiang LyuCASE NUMBER: 1710840
DIBP REFERENCE(S): BCC2016/1646799
MEMBER:John Cipolla
DATE:17 October 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 17 October 2019 at 9:00am
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) – Subclass 189 Skilled Independent – incorrect information – bogus IELTS document – paid imposter to sit test – hardship over selling business – seriousness of providing incorrect information – no jurisdiction with respect to other applicants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 109, 140
CASES
CSH18 v MHA [2018] FCCA 3226
MIAC v Khadgi (2010) 190 FCR 248
Seymour v Migration Agents Registration Authority [2006] FCA 965
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant provided incorrect information to the Department in support of her Skilled visa application, namely that she had undertaken an IELTS test when in fact she had not and that she had provided a bogus document to the Department in support of her Skilled visa application. Forensic analysis of photographic evidence established that the applicant did not sit the test but paid an imposter to sit the test on her behalf and thus the document containing the test results was bogus. The issue in the present case is whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.
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.
The applicants appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Mr Zhiqiang Lyu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
REVIEW HISTORY
The Departmental delegate cancelled the applicant’s visa in a decision made on 15 May 2017. The applicant lodged a review application with the Tribunal.
On 8 December 2017 the Tribunal wrote to the applicant advising that the Department had advised the Tribunal that the officer who made the decision to cancel the applicant’s visa did not have the delegated power to cancel the visa under Section 109 at the time that they made that decision. The Department advised the Tribunal that it was the Department’s view that the cancellation decision stood unless set aside by a court or by the Tribunal. The letter noted that the Tribunal was considering making a guidance decision about what should happen in a case such as this and that the applicant would be advised in due course how the matter would be progressed.
The Tribunal wrote to the applicant on 19 June 2018 to advise the applicant that it was the Department’s view that “those decisions stand unless set aside by a court or Tribunal, and that the Tribunal has jurisdiction to hear the merits review applications and exercise the full suite of powers in relation to applications: see Seymour v Migration Agents Registration Authority [2006] FCA 965 (31 July 2006).”
The letter further noted that on 29 March 2018, the Tribunal held a hearing in relation to the Section 109 delegation issue in the specified application. Following the hearing, the applicant in the specified matter commenced proceedings in the Federal Court of Australia on the grounds that:
4.… The cancellation decisions are invalid because the officer of the department had no power to do so
5. as the cancellation decisions are invalid, they have no effect
6. accordingly, the Tribunal does not have jurisdiction to review the cancellation decisions and any present review cannot proceed
7. the Tribunal cannot conduct a full review on the merits of the decision and is limited to identifying that there was no power to make the cancellations
Relevantly, the applicant in the specified matter has sought:
(1) a declaration that the decision of the Department to cancel the Visa of the applicant in the specified matter is invalid and of no effect, pursuant to section 476 of the act;
(2) a declaration that the Tribunal does not have jurisdiction to review the cancellation decision pursuant to section 476 of the act; and
(3) an injunction restraining the Tribunal from proceeding to conduct a review of the cancellation decision until the application to the Federal circuit Court is finalised.
The Tribunal intends to await the outcome of the FCC proceedings before determining whether to issue a guidance decision. The Tribunal will advise you in due course of the outcome of FCC proceedings and whether we anticipate making a guidance decision about what should happen in cases such as this. At this stage, you do not need to do anything about your review.
On 23 October 2018 the Tribunal convened a review hearing, for the purpose of providing the applicant with an update of the progress of the review. The Tribunal advised at this review hearing that it was still awaiting the outcome of FCC proceedings pertaining to the delegation issue and would not be proceeding to a review hearing until the FCC proceedings have been finalised.
The Tribunal received advice in a letter dated 22 October 2018 that the applicants had engaged FCG Legal Pty Ltd to represent them at merits review.
The Tribunal wrote to the applicants on 9 January 2019 advising as follows:
On 8 December 2017, the Administrative Appeals Tribunal (the Tribunal) wrote to you to advise that in your case the power to cancel the visa under Section 109 was not delegated to the officer from the Department of Immigration and Border Protection (now the Department of Home Affairs) who decided to cancel your visa. This also happened in some other decisions the Tribunal is reviewing.
We also advised you, on 19 June 2018, that we were waiting for the outcome of Federal Circuit Court of Australia (FCC) proceedings in which the FCC was considering whether the Tribunal had the power to review your matter and the others like it.
The FCC has since determined that the Tribunal can review your matter, but does not have the power to affirm the decision: CSH18 v MHA [2018] FCCA 3226. Essentially, the Tribunal would need to set aside the decision because neither the delegate, nor the Tribunal, had the power to cancel. However, the Minister has lodged an appeal against this judgement, and has indicated that it is likely that the matter will be listed in the February/March 2019 sitting. The Minister is of the view that the Tribunal does have power to affirm the decision in your case.
The Tribunal will not make a decision in your case until that appeal is finalised. The Tribunal will advise you in due course of the outcome of that appeal and how it affects your review. At this stage, you do not need to do anything about your review.
Annexed to the letter of 9 January 2019 was a copy of the decision of the Federal Circuit Court of Australia in CSH18 v MHA [2018] FCCA 3226.
On 23 August 2019 the Tribunal invited the applicant to a review hearing scheduled for 26 September 2019. On 4 September 2019 the Tribunal received correspondence from the applicant’s representative advising that they had not received an update regarding the Federal Court appeal and its impact on the applicant’s case since the Tribunal’s letter of 9 January 2019. The Presiding Member was on annual leave at the time of receipt of this correspondence. A Registry Officer advised the representative that the Member would be returning from leave close to the hearing date and would appraise the applicant and representative of the outcome of Federal Court proceedings at the scheduled review hearing.
The Tribunal conducted the hearing on 26 September 2019 and the applicant attended along with her husband and her representative.
At the outset of the review hearing the Tribunal made reference to the history of this review to date. The Tribunal made reference to the impediments caused by the fact that the Minister had not delegated his power of cancellation to the officer that made the cancellation decision. The Tribunal made reference to the correspondence provided to the applicant since the lodgement of the review pertaining to judicial review in the Federal Circuit Court of Australia and more recently the Federal Court of Australia.
The Tribunal made reference to the decision of the Federal Court of Australia in MHA v CSH18 [2019] FCAFC 80. The Tribunal noted that the Ministers appeal in the Federal Court of Australia was successful. The Tribunal noted that the judgement provides full Federal Court authority for the extent of the Tribunal’s powers to review a purported decision, where the person who made the decision lacked the requisite delegation to do so and is relevant to a cohort of cancellation cases before the Tribunal, including the case of the review applicant currently before the Tribunal, that had been affected by a delegation error. The Tribunal noted that the case provides authority on the meaning of section 415(1) and that the words ‘powers and discretions that are conferred by this Act on the person who made the decision mean that in the case of an ineffective delegation the Tribunal can proceed to review the matter as if the delegation had been effective.
The Tribunal explained in detail for the benefit of the applicant the merits review process and the prospective outcomes of the review. The Tribunal noted that the respective issues in this review was whether the grounds for cancellation of the applicant’s visa under Section 109 of the Migration Act existed and if so whether or not the applicant’s visa should be cancelled having regard to relevant discretionary factors.
The applicant provided her name and date of birth. The Tribunal advised the applicant that it wished to obtain details of her immigration history in Australia to date. The applicant advised that she arrived in Australia in August 2008 as the holder of a Student visa, Subclass 573 visa. The applicant advised that she held Student visas for five years between 2008 and 2013.
The Tribunal asked the applicant about the studies that she engaged with in Australia as an overseas student. The applicant stated that she initially completed six months of language studies followed by a Bachelor of Commerce degree at Latrobe University which she duly completed. The applicant further advised that she completed studies as a translator enabling her to translate from Chinese to English and she also did an immigration law course at Victoria University which enabled her to obtain registration as a migration agent. The applicant advised however that she had not worked as a migration agent.
The Tribunal made reference to the Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa dated 21 April 2017. The Tribunal noted that the NOICC indicated that the delegate was considering cancellation of the applicant’s visa on two grounds firstly a breach of Section 101 of the Act on the basis that the applicant had provided incorrect information in her skilled visa application and secondly Section 103 of the Act namely that the applicant had provided a bogus document in support of her skilled visa application. The Tribunal noted that the grant of Subclass 189 visa required an applicant to satisfy English language requirements and required an applicant to undergo an IELTS test. The Tribunal noted that the evidence outlined in the NOICC indicated that the applicant had paid an imposter to sit the IELTS test on her behalf and that this had been uncovered as a consequence of a forensic examination of photographs provided by the person who sat the IELTS test and photographs previously provided by the applicant with respect to a visa application. The Tribunal noted that the applicant had successfully completed tertiary studies in Australia suggesting that the applicant had competent English. The Tribunal asked the applicant why she had paid for another person to sit the test on her behalf given that she had undertaken tertiary studies conducted in English. The applicant advised that she had previously sat an IELTS examination. The applicant noted that for the purposes of her skilled visa she needed to obtain a score of 6.0 in each of the four areas of testing namely speaking, listening, reading, and writing. The applicant stated that the best result that she had been able to achieve for writing was 5.5 and that she had achieved 6.0 in all other areas of testing. The applicant admitted to being involved in migration fraud by paying for another person to sit the test on her behalf.
The applicant stated that she made a mistake in this respect. The Tribunal stated to the applicant that it would have been in her best interests to pursue further tuition in the written component of the test so that she would have a better chance of passing that component of the test on her own. The applicant agreed. The Tribunal asked the applicant whether she was concerned about paying an imposter to sit the test on her behalf and the potential consequences of being caught out for this. The applicant advised that she was worried and scared about being found out.
The Tribunal asked the applicant whether she and her husband had purchased real estate in Australia. The applicant advised that she and her husband purchased a property in Mill Park in Victoria for $560,000 in 2015. She advised that the property was currently valued at about $750,000 and that she had a mortgage of $460,000 on this property.
The Tribunal noted that substantial prehearing evidence had been provided pertaining to the applicant’s business in Australia that she and her husband had established called Stairup Pty Ltd. The Tribunal asked the applicant how she was able to afford to purchase real estate in Australia in 2015 and to establish a business. The Tribunal asked the applicant whether she had wealthy parents or relatives in China that had been able to financially assist her and her husband in this respect. The applicant stated that she received $100,000 from her parents as a gift which had assisted in the establishment of the business.
The Tribunal asked the applicant about her husband’s qualifications. She advised that her husband had trained and worked as an Aircraft Engineer in China and had accompanied the applicant to Australia in 2008. The applicant stated that her husband obtained work in Australia with a business that was involved in the installation of staircases the applicant stated that because of her husband’s engineering skills he himself was able to study and learn how to install staircases. The applicant stated that she and her husband had worked tirelessly in developing the business often working seven days a week. The applicant advised that since the inception of the business it had grown exponentially, and that the evidence that had been provided by the representative would corroborate this. The Tribunal asked the applicant how many people were currently employed in the business and she advised 11, the Tribunal asked how many of these 11 employees were are Australian citizens or permanent residents and she advised 6 of the employees were Australian permanent residents. The applicant stated that most of the employees were of Chinese ethnic background and that she had one Australian-born employee working in the business.
The applicant advised that she and her husband had a son together in April 2019. The applicant stated that she wished for her son to be educated in Australia where he could have the best educational opportunities and that she had enrolled her son at a number of private schools in Melbourne namely Camberwell Grammar School and Trinity Grammar. The applicant stated that she would like her son to study English and have the best education possible.
The Tribunal asked the applicant what impact the cancellation of her visa would have on her and her family. The applicant stated that her business had a large number of contracts in place for the next year and that approximately 50 projects were in the pipeline. The applicant stated that she and her husband had given thought to selling the business because of the cancellation process and the uncertainty surrounding it. The applicant stated however that she and her husband had seen exponential growth in the business over time and that she and her husband, because of their Chinese ethnic background, were tapping into Chinese real estate development in the Victorian market and this was feeding growth in the business. The applicant stated that she and her husband through their business paid considerable tax and that they were thus making a contribution to Australia through the tax system.
The Tribunal asked the applicant whether she was making any additional contributions to Australia. The applicant stated that she and her husband had been talking about ongoing contributions and had decided that if they are able to earn more money in their business they would like to make donations to charitable organisations going forward. The applicant added that she and her husband had always met their tax obligations in Australia. The applicant stated that through her business she was providing supplementary support to other businesses within Australia. She advised that she and her husband had spent $300,000 on plant and equipment and that they wanted to expand their business and had been looking at purchasing additional warehouse space to assist in this expansion. The applicant stated that the business was now making significant turnovers in terms of the profit. The applicant stated that she and her husband had also explored additional business opportunities including the establishment of a company exporting Australian stainless steel to China because of the high quality of Australian stainless steel products.
The Tribunal took evidence from the applicant’s husband. The applicant’s husband was invited to provide whatever evidence he wished to provide in respect of the review and with respect to the cancellation of his and his wife’s visas. The witness stated that if his visa was cancelled he would have to return to China within 28 days after the decision. The witness stated that as a consequence the business that he and his wife had developed would need to cease due to the cancellation. The witness stated that this would have a significant impact on the clients of the business as there were a number of uncompleted contracts and contracts in the pipeline that had been signed committed to. The witness stated that the business employs a total of 11 employees 6 of whom were permanent residents of Australia. The witness stated that two of his employees had upcoming property settlements in November 2019 and that they were reliant on their jobs to meet their obligations to the bank in terms of repayments. The witness stated that if they were to lose their jobs they would have difficulty in being able to settle on the property. The witness stated that another employee was about to have a baby and that if they lost their job this would have a great impact on them. The witness stated that the business engaged with a lot of suppliers and that due to growth in the business they had contributed to the profit of their suppliers who supplied timber and fittings and stainless steel for the construction and installation of staircases. The witness stated that over time the business had grown exponentially and that profits were increasing each year going forward. The witness stated that he and his wife were exploring the prospect of buying a larger warehouse to store their equipment which would lead to the ability to increase the number of employees in the business. The witness stated that their current warehouse could only accommodate five employees and they need a larger space to expand the business even further.
The witness stated that he and his wife had a baby son in April 2019 and they hoped the baby would be able to be educated and grow up in Australia where there were better opportunities. The applicant stated that he hoped his child would be able to make a contribution to the Australian community going forward.
The Tribunal invited the applicant and her husband to provide any additional evidence that they wished the Tribunal to consider pertaining to whether or not the visa should be cancelled. The applicant stated that the staircase business that she and her husband had established was involved in both commercial and residential construction. The applicant advised that quoting for jobs is extremely difficult because of different buildings and layouts and that her husband had developed a lot of expertise in undertaking comprehensive quotes and exacting measurements to ensure the quality of workmanship. The applicant’s husband advised the Tribunal that he and his wife adhered to the construction code that applied in Victoria and were well versed in their understanding of their obligations under the construction code with regard to the manufacture, quoting for and installation of staircases. The applicant’s husband advised the Tribunal that because of his engineering background and his experience he was able to effectively address issues that occurred on site. The applicant’s husband advised the Tribunal that he and his wife had worked extremely long hours seven days a week to establish and grow their business. The applicant’s husband advised that he was adept at manufacturing of staircases as well as machinery repair because of his skills as an engineer.
Both the applicant and her husband reiterated that the business now employed 11 staff, that the business was looking to purchase a larger warehouse where the business could be grown further. The applicant advised that she and her husband were planning to employ more employees in the future to accommodate growth in the business. The applicant stated that she and her husband lived next door to a neighbour who worked in the caravan industry and that she and her husband were looking at the potential to fit out caravans. The applicant reiterated the plans that she and her husband were making for the exportation of Australian steel into China because of the quality of that product. The hearing concluded.
The Tribunal advised the applicants that it would be having regard to all of the information provided to the Department, all of the information that had been provided at review including the review hearing and any supplementary post hearing information submitted by the applicant’s representative. The Tribunal consented to 2 weeks post hearing for any additional material to be provided to the Tribunal.
The Tribunal received a post hearing submission dated 15 October 2019 which it has duly considered. The submission noted the request of the Tribunal that the applicant provide a copy of her IELTS test results along with a copy of her Subclass 189 visa grant notice of 15 October 2014. The submission included an updated statement from the applicant. It also included a copy of IELTS test results dated 13 July 2013 and 3 August 2013. The submission also included supplier’s invoices pertaining to suppliers used by the business Stairup Pty Ltd. The submission provided copies of the applicant’s husband’s tertiary qualifications in engineering along with other qualifications obtained by the applicant’s husband. The submission also included evidence pertaining to the applicant’s son’s application for enrolment for Camberwell Grammar School and Trinity Grammar School in Melbourne which had been submitted in September 2019.
The submission makes reference to the applicant’s evidence at hearing where she advised that in the IELTS tests that she had undertaken prior to the lodgement of her Subclass 189 visa application that she had scored 6.0 in each of the areas of testing apart from writing where she had scored 5.5. The test scores submitted post hearing along with the submission of 15 October 2019 indicated that in her IELTS test of 13 July 2013 the applicant scored 5.5 for listening 6.0 for reading 5.0 for writing and 6.0 for speaking. In her IELTS test of 3 August 2013 the applicant scored 4.5 for listening 6.5 for reading 5.0 for writing and 6.0 for speaking. The submission notes that:
It is noted the (sic) Lei did not obtain the required score for listening and did not obtain a score of 5.5 in writing as previously stated. We are instructed that Lei genuinely remembered not receiving the desired results only due to the writing component of the IELTS tests. As the Tribunal can appreciate, it has been six years since Lei has completed her IELTS tests. As such, we respectfully submit that it is reasonable that Lei did not precisely recall her results and wishes to clarify her IELTS results following the hearing.
The submission notes that the applicant’s business had purchased approximately between $500,000 and $600,000 worth of timber from Australian timber wholesalers and a number of invoices were submitted in support of this.
The submission further notes that the applicants will encounter difficulty in selling their business as any new business owners will require a specialised engineering background, knowledge of Australian stair regulations and experience with computer aided drafting software in order to continue to operate the business successfully. The submission notes that significant weight should be given to the negative impact the closure of the applicant’s Australian business will have on a number of Australian businesses, homeowners, suppliers and employees and should be a consideration in favour of not cancelling the applicant’s visas.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
The applicant has conceded that she did in fact provide incorrect information to the Department in the lodgement of her Subclass 189 visa application in breach of s.101 of the Act, namely that she did not as claimed sit an IELTS test herself and that an imposter sat the test on her behalf.
The applicant further concedes that as a result of her failure to sit the IELTS test herself she has provided IELTS test results certificate that is in fact a bogus document in support of her visa application in breach of s.103 of the Act.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
· the correct information
· the content of the genuine document (if any)
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
· the circumstances in which the non-compliance occurred
· the present circumstances of the visa holder
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
· any other instances of non-compliance by the visa holder known to the Minister
· the time that has elapsed since the non-compliance
· any breaches of the law since the non-compliance and the seriousness of those breaches
· any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The evidence before the Tribunal indicates the applicant was granted a Subclass 189 visa on 17 October 2014. One of the criteria for the grant of the visa is that an applicant has undertaken an English language test within the last 36 months. In response to this question contained in the online visa application form the applicant advised that she had undertaken an English language test. The applicant advised that she had undertaken the International English Language Testing System test known as IELTS on 14 March 2014 and that the result of the tests was that she had ‘proficient’ English. The evidence before the Tribunal indicates that the grant of the visa was contingent on the applicant meeting the English language requirement. The evidence before the Tribunal indicates that the applicant did not sit the IELTS test as claimed. The evidence indicates that on 5 April 2017 the Department of immigrations Forensic Facial Image Examiner provided an assessment comparing the image on the IELTS certificate provided with the visa application and photographic images provided by the applicant for her health assessments between the period 2008 and 2014. The examiner was not able to conclude that the IELTS certificate image was the same person as the person in the health images and indeed found that the image from the IELTS certificate was a match to another person on Departmental records who held a different name and date of birth from that of the applicant. The evidence before the Tribunal indicates and the applicant in fact concedes that she did not set the IELTS test as claimed and that she paid an imposter to sit the test on her behalf. The applicant advised at hearing that despite having undertaken tertiary studies in Australia in previous attempts where she had sat for the IELTS test she had only managed to score 5.5 in the written component of the test whereas she was required to obtain a result of at least 6.0. This evidence was amended in a post hearing submission.
The Tribunal accepts that the applicant’s recall of her test results at hearing may have been compromised by the fact that she undertook these tests 6 years ago. The test results indicate that the applicant’s evidence that she missed out on meeting the English language requirements by 0.5 in writing are negated by the provision of the IELTS test results of 2013. The results indicate that the applicant in the test of 13 July 2013 did not attain the required 6.0 in listening and writing and in the test of 3 August 2013 she again did not attain the required 6.0 in listening and writing.
The evidence before the Tribunal indicates that the applicant deliberately provided incorrect answers in the completion of her Subclass 189 visa application form in contravention of section 101 of the Act. The evidence before the Tribunal indicates that the applicant not only provided an incorrect answer in her visa application form but she also engaged an imposter to sit the English language testing examination on her behalf to ensure that she met the English language requirements that were relevant to the grant of the visa. The Tribunal finds that the applicant engaged in immigration fraud in order to obtain an immigration outcome that led to the grant of permanent residence. The Tribunal places significant weight on this factor in cancelling the applicant’s visa.
The content of the genuine document
The applicant provided an IELTS Test Form in support of her visa application in order to establish that she met the English language requirements relevant to the grant of the visa, namely evidence that she had undertaken an IELTS test within the last 36 months The evidence before the Tribunal indicates that the applicant paid an imposter to sit the test on her behalf as previous attempts by the applicant to achieve the requisite results in all areas of testing had failed. The evidence before the Tribunal noted above indicates that a Forensic Imaging Examiner found that the photograph on the IELTS test certificate when compared with photographs submitted by the applicant in previous applications were different and concluded that the applicant had paid for an imposter to sit the test on her behalf. This is a fact that the applicant concedes.
The Tribunal finds that the applicant in the provision of a fraudulent document engaged in immigration fraud in order to obtain an immigration outcome that led to the grant of permanent residence. The Tribunal places significant weight on this factor in cancelling the applicant’s visa.
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 evidence before the Tribunal indicates that the decision to grant the applicant a Subclass 189 visa was wholly or partly based on incorrect information.
The grant of the visa is contingent on an applicant satisfying the Department that they have competent English. The completion of an IELTS test in the last 36 months prior to lodgement and a satisfactory test score of at least 6.0 in each of the four areas of testing is sufficient evidence to establish that an applicant has proficient English.
The evidence before the Tribunal indicates that the applicant made a number of attempts to meet the English language requirements but was not able to achieve a result of 6.0 in each of the 4 areas of testing.
In order to facilitate her meeting this requirement and in turn satisfying the relevant criteria for the grant of the visa the applicant paid for an imposter to sit the test and she then submitted the fraudulently obtained test results.
The evidence indicates that the decision to grant a visa to the applicant was based partly on the provision of incorrect information and the provision of a bogus document and the Tribunal places significant weight on these factors in cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The evidence before the Tribunal indicates that the applicant had failed to meet the relevant English language requirements for the grant of a Subclass 189 Skilled visa. There are a number of ways that an applicant for this visa can satisfy the requirement including the provision of evidence that they have undertaken an IELTS test in the 36 months prior to applying for the visa in which they had achieved an IELTS test score of 6.0 in each of the four areas of testing. The applicant had made previous attempts to meet the relevant English language requirements and had not been able to satisfy them. It became apparent to the applicant as a result of this that the failure to meet the relevant satisfactory English language test score in each area of testing would be an impediment to the grant of the visa. In order to circumvent this impediment the applicant paid an imposter to sit the test for her and with the imposter meeting the test score requirements of 6.0 in each area of testing the applicant proceeded to pass these results off as her own even though the photo on the test score results was that of the imposter. The applicant did this knowingly in the hope that the similar Asiatic features in the photo of the imposter would not be uncovered down the track. Due to vigilance and checking by Departmental officials and identification experts the fraud was uncovered leading to the Department commencing the cancellation proceedings that are the subject of this review. Having regard to the circumstances in which the non-compliance occurred the Tribunal places significant weight on these circumstances in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
The evidence before the Tribunal indicates that the applicant has been residing in Australia for an extended period of time. The evidence indicates that the applicant arrived in Australia in August 2008. The applicant held a number of student visas. The applicant as has been noted was granted a Subclass 189 Skilled visa on 17 October 2014 a visa that leads to the grant of permanent residence. This visa lets invited workers with skills needed within the Australian economy to remain permanently, however the grant of the visa is predicated on the applicant meeting the points test requirements and a component of this is that an applicant meet the English language requirements. To meet this requirement an applicant is required to have undertaken an English language test in the last 36 months and there are tests that are specified to meet this requirement, one being the IELTS test where an applicant has to achieve 6.0 in all of the 4 areas of testing. As has also been noted the applicant had made a number of attempts in her own right to meet the specified test score, however the applicant could not meet the English language requirements which in turn would lead to her not meeting the points test requirements.
In order to overcome this impediment the applicant decided to engage in immigration fraud. The applicant paid an imposter to sit the test on her behalf and the imposter was able to obtain the relevant 6.0 required in each of the four areas of testing. As a consequence of this immigration fraud the applicant met the points test requirements relevant to the grant of a Subclass 189 skilled visa and the visa was duly granted to her. The evidence before the Tribunal indicates that the grant of the visa to the applicant was based on a false pretence.
The Tribunal questioned the applicant during the course of the review hearing about whether she was fearful of being caught out for engaging in immigration fraud and the applicant stated that she had made a mistake and that she had been worried and scared about the fraud being identified. Despite this after the grant of permanent residence the applicant began to invest in Australia. This included the purchase of a residential property in Mill Park in Melbourne for $560,000 in 2015 and the establishment of a stair installation business called Stairup Pty Ltd. The evidence before the Tribunal indicates that since the inception of the business it has continued to grow and the business currently employs a number of Australian permanent residents. The applicant provided evidence along with her husband at the review hearing that due to the growth in the business they had been exploring the purchase of a larger warehouse which could lead to further growth in the business, and both the applicant and her husband advised the Tribunal at hearing and in pre-hearing submissions that they had committed to a number of contracts going forward with regard to the installation of staircases.
In addition to this the applicant advised the Tribunal at the review hearing that she and her husband had a child together in April 2019. It was their hope that the child could grow up in Australia and be educated in Australia where they believed there were greater opportunities for their child. As a consequence of this the applicant and her husband had enrolled their son at a number of private schools in Melbourne.
Pre and post hearing submissions have been made to the Tribunal by the applicant’s representative indicating that the applicant and her husband had committed substantially to their Australian business. The submissions note that the applicants have a settled life in Australia and they have family and friends in Australia with whom they have built close relationships. The submissions note that favourable weight should be afforded to the applicant’s present circumstances namely having a settled life in Australia along with the fact that the applicant operates a successful business with the potential to expand further and continue to employ local staff. The submissions also note the detrimental impact on contracted customers and suppliers if the applicant’s visa is cancelled.
The Tribunal acknowledges the fact that the applicant has been resident in Australia since 2008 and has held permanent residence since the grant of the Subclass 189 visa on 17 October 2014. The Tribunal also acknowledges the fact that the applicant and her husband have worked extremely hard to establish themselves in Australia establishing a business, purchasing residential property, and starting their family in April 2019. However the Tribunal notes that the grant of the visa was predicated on the applicant meeting the relevant points test requirements. Despite the applicant’s endeavours to meet those requirements she was unable to attain the relevant test score for writing in IELTS tests that she had undertaken.
The applicant then made a poor decision that has had serious ramifications for her and her family. The applicant as noted paid for an imposter to sit the test on her behalf and it was only on this basis that the applicant was able to meet the English language requirement relevant to the grant of the visa. The Tribunal finds that the applicant engaged in serious migration fraud in order to affect a visa outcome and that the grant of permanent residence on 17 October 2014 was based on a false pretence. The Tribunal gives some weight to the applicant’s present circumstances in favour of not cancelling her visa however the apportionment of this weight is substantially affected by the immigration fraud that the applicant entered into in order to obtain permanent residence. It follows that the applicant’s investment in Australia in both residential property and the establishment of a business has consequently been made on the basis of a false pretence, i.e. the applicant’s engagement in immigration fraud.
The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The applicant provided a comprehensive response to the NOICC and has co-operated with the Department throughout the cancellation process.
The Tribunal gives this consideration some weight in the applicant’s favour.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of other instances of non-compliance by the visa holder. The Tribunal apportions some weight to this consideration in favour of the applicant.
The time that has elapsed since the non-compliance
The instance of non-compliance occurred in March 2014 at which time the applicant engaged an imposter to sit an IELTS test on her behalf.
The Tribunal gives this consideration some weight in the visa holder’s favour.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that indicates any breaches of the law by the visa holder and the Tribunal gives this consideration some weight in the visa holder’s favour.
Any contribution made by the holder to the community
The evidence before the Tribunal indicates that the applicant and her husband have established a staircase installation business and that the business has continued to expand since its establishment. This has meant that the applicant and her husband are making a greater contribution to the Australian Tax Office as the business expands. The evidence also indicates that the applicant and her husband have engaged with a number of suppliers and that their business contributes to the businesses that they source materials from such as timber and stainless steel suppliers. There is no additional evidence that’s been provided to the Tribunal at review pertaining to contributions that the applicant has made to the community. The Tribunal gives this consideration some weight in favour of the applicant.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
The evidence before the Tribunal indicates that the applicant’s husband was included as a dependent member of the applicant’s family unit in her Subclass 189 visa application. The couple had a son in April 2019.
The Tribunal gives this consideration some weight in the applicant’s favour.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
There is no evidence before the Tribunal that Australia will be in breach of any international agreements or obligations as a result of the cancellation of the applicant’s visa and the Tribunal gives this consideration no weight in the applicant’s favour.
Whether there are mandatory legal consequences to a cancellation decision
If the applicant’s visa is cancelled the applicant will become an unlawful noncitizen and will be liable to be detained in immigration detention under section 189 of the Migration Act or removed from Australia under section 198 of the Migration Act in the event that the applicant did not arrange her own departure from Australia. Further to this the applicant may be precluded from making an application for a further visa for a period of 3 years pursuant to Public Interest Criterion.
The Tribunal gives these considerations some weight in the applicant’s favour.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 and s. 103 of the Act and that there are grounds for cancelling the visa.
The Tribunal has formed the view that the provision of incorrect information and a bogus document in her Subclass 189 Skilled visa was deliberate and done with the intention to achieve an immigration outcome. The applicant acknowledged that she understood the potential ramifications of engaging in immigration fraud by engaging an imposter to sit the IELTS English language test on her behalf. The applicant gave evidence that she was worried and scared that she may be found out at some point in time and through the vigilance of a Departmental delegate and the use of a facial recognition expert the applicant’s engagement in immigration fraud to achieve a permanent migration outcome was uncovered.
The Tribunal finds that this adverse conduct by the applicant was significant. The Tribunal finds that the grant of permanent residence to the applicant in October 2014 was based on the applicant perpetrating an immigration fraud by engaging an imposter to sit an IELTS English language test where a pass mark was a pre-requisite to the applicant meeting the points test requirements relevant to the grant of the visa.
The Tribunal places significant weight for cancelling the applicant’s visa on the provision of incorrect information and a bogus document due to the fact that it involved the applicant finding and then engaging an imposter to sit an English language examination on her behalf in order to achieve a migration outcome which bestowed on the applicant and her husband the grant of Australian permanent residence. This in the view of the Tribunal was clear immigration fraud perpetrated to achieve a visa outcome that would most likely (based on previous test attempts) have not been achieved had the applicant sat the IELTS test in her own right.
The residential property investment and the establishment of a business by the applicant and her husband and the consequent hardship in selling the business and the effect on suppliers along with the recent birth of their child in April 2019 are factors which when cumulatively considered are not enough to counter the seriousness of the incorrect information and the provision of a bogus document.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.
The Tribunal has no jurisdiction with respect to the other applicants.
John Cipolla
Senior MemberATTACHMENT – 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.
0
4
0