Wu (Migration) - [2019] AATA 6149

Wu (Migration) [2019] AATA 6149 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Lei Wu
Mr Zhiqiang Lyu
CASE 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wu (Migration)

Details

AGLC: Wu (Migration) [2019] AATA 6149
Case: [2019] AATA 6149
Decision Date: 17 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms Wu, against the cancellation of her Skilled Independent (Permanent) visa (Subclass 189). The dispute arose from the applicant's submission of a bogus IELTS document, where an imposter had sat the English language test on her behalf. The Administrative Appeals Tribunal was required to determine whether the visa cancellation was justified.

The Tribunal was tasked with considering whether the applicant had failed to comply with sections 101 and 103 of the Migration Act 1958 (Cth), which broadly require non-citizens to provide correct information and not to submit bogus documents in their visa applications. If non-compliance was established, the Tribunal then had to exercise its discretion under section 109(1) of the Act to decide whether the visa should be cancelled, having regard to prescribed circumstances including the nature of the non-compliance, the applicant's present circumstances, and any other relevant factors.

The Tribunal found that the applicant had indeed provided incorrect information and a bogus document, as she had paid an imposter to sit the IELTS test, and the results were then submitted as her own. This was a deliberate act to circumvent the English language proficiency requirements for the visa. The Tribunal placed significant weight on the fact that the visa grant was wholly or partly based on this fraudulent conduct, describing it as immigration fraud. While acknowledging the potential hardship to the applicant, including the impact on her business and family, the Tribunal concluded that these factors were not sufficient to outweigh the seriousness of the immigration fraud.

The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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