Xiong (Migration)

[2020] AATA 3603

Xiong (Migration) [2020] AATA 3603 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hong Xiong
Ms Juying Chen
Mr Chen Xiong

CASE NUMBER:  1703424

DIBP REFERENCE(S):  BCC2016/1795403

MEMBER:R. Skaros

DATE:23 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

Statement made on 23 July 2020 at 12:29pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in visa application – English language test – bogus document – IELTS test report – test undertaken by imposter – consideration of discretion – visa grant based on incorrect information – deliberate deception – financial and family ties – employment in an in demand occupation – consequential cancellations – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).

Background

1. The first named applicant (the applicant) applied for the Regional Sponsored Migration Scheme, Subclass 187, visa (the visa) on 19 March 2015. The applicant’s spouse and son were included in the visa application as members of his family unit. The visas were granted on 1 September 2015.

2. In 2016 the Department received information which suggested that the applicant had provided incorrect information in the visa application about having undertaken an English language test and that a bogus IELTS test report had been provided with the visa application.

3. By email, on 10 January 2017, the Department sent the applicant a Notice of Intention to Consider Cancellation under s.109 of the Act (the notice). The notice set out the particulars of the possible non-compliance with s.101 and s.103 of the Act.

4. On 16 February 2017, the delegate cancelled the applicant’s visa. The delegate found that the applicant had not complied with s.101 and s.103 of the Act and, after considering the prescribed circumstances in r.2.41 of the Migration Regulations 1994 (the Regulations), decided that the visa should be cancelled.

5. 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.

6. Following the delegate’s decision, the Department received submissions and supporting documents from the applicant’s representative. The delegate was unable to consider that material as a decision had already been made to cancel the visa. A copy of that material has been provided to the Tribunal and the Tribunal has had regard to it in its considerations.

7. The applicant provided a copy of the delegate’s decision record with the application for review.

8. The applicant was invited to appear before the Tribunal, differently constituted, on two occasions in December 2018 and February 2019. However, on these occasions the previously constituted Tribunal was unable to proceed with the hearings.

9. The applicant appeared before the present Tribunal on 13 February 2020 by video to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, son, brother and manager, Mr Chapman Lee.  The Tribunal also received oral evidence from the son’s employer, Mr Yang Song. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. Prior to the hearing, the Tribunal received updated submissions from the representative and supporting documents to which the Tribunal has had regard. 

11. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

12. The Tribunal also received post hearing submissions regarding the circumstances of the applicant’s son to which it has had regard.

13. 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

1. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. 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.

3. 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.

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

1. The Tribunal has had regard to the notice dated 10 January 2017 that is on the Department’s file. The notice informed the applicant that his visa may be cancelled under s.109 of the Act on the basis that he appears to have not complied with s.101(b) and s.103 of the Act. The notice set out the particulars of the possible non-compliance and advised the applicant to respond in writing within a specified period. The notice also set out the effect of various sections of the Act, the applicant’s continued obligations under the Act and requested the applicant to keep the Minister informed of his address.

2. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

2. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) (visa application to be correct) and s.103 (bogus documents not to be given) as follows:

   Section 101 Visa applications to be correct

   On 19 March 2015 you lodged an application for a subclass 187 visa via the online lodgement facility. On 1 September 2015 the Department granted you a subclass 187 visa.

   On page eleven of the application form under the heading "Language — XIONG, HONG (30 Jan 1974)":

   Under the heading "Language ability", where it states "Has the applicant undertaken an English language test within the last 36 months?", your response was "Yes".

   Under the heading "English test details", where it states "Give details of the most recent English test.", your response was:

   "Name of test:                IELTS

   Date of test:                  18 Mar 2013

   Test reference number: 13CN020749XIOH001A

   Country where test was

   undertaken:  AUSTRALIA

   Language ability:            Competent"

   You submitted an IELTS test result dated 18 May 2013 (TRN 13CN020749XI0H001A) with an overall band score of 6.5 to the Department with your visa application.

   On 18 May 2016 the Department received adverse information regarding your IELTS test dated 18 May 2013 (TRN 13CN020749X1OH001A).

   The British Council Beijing advised the Department that you used an impostor to sit for your IELTS test dated 18 May 2013 (Test reference number 13CN020749X10H001A) in Shenyang.

   I consider that the answers provided by you at page eleven of your application form, under the heading "Language ability", where it states "Has the applicant undertaken an English language test within the last 36 months?", and you indicated "Yes", and under the heading "English test details", where it states "Give details of the most recent English test.", and you indicated:

   "Name of test:                IELTS

   Date of test:                  18 Mar 2013

   Test reference number: 13CN020749X10H001A

   Country where test was

   undertaken:  AUSTRALIA

   Language ability:            Competent"

   is incorrect, as it appears that you did not undertake this test, rather, an imposter undertook this test.

   Given this information, I consider that you have not complied with section 101(b) as you provided incorrect answers to the above questions in your subclass 187 visa application. Therefore, if you have failed to fill in your application form in such a way that no incorrect answers are given or provided, your visa may be cancelled.

   Section 103 Bogus documents not to be given etc.

   You submitted an IELTS test result dated 18 May 2013 (TRN 13CN020749X10H001A) with an overall band score of 6.5 to the Department with your visa application.

   As the British Council Beijing advised the Department that you used an impostor to sit for your IELTS test dated 18 May 2013 (TRN 13CN020749X10H001A) in Shenyang, it appears that you provided an IELTS test which was purported to have been, but was not, issued in respect of the person, in this case, you, with your subclass 187 visa application.

   Given this information, I consider that you have not complied with section 103. Therefore, if you have provided a document which was purported to have been, but was not, issued in respect of the person, your visa may be cancelled.

3. In written submissions to the Department, the representative stated that the applicant’s former migration agent had indicated in the visa application form that the IELTS test was undertaken in Australia and that this was an error on the part of the former migration agent.

4. In relation to the information indicating that it was an imposter, and not the applicant, who sat the IELTS test and the IELTS test report being a bogus document, it was submitted that the applicant is sincerely apologetic and admits to the allegations and non-compliance and confirms that the information provided on the application form is incorrect and that an imposter had undertaken the test on his behalf. It was stated that the applicant is deeply remorseful and regrets what has occurred.

5. At the hearing, the Tribunal discussed with the applicant the information set out in the notice and the representative’s submissions regarding the non-compliance. When invited to comment on the Tribunal’s view that the evidence appears to establish that he has not complied with s.101 and s.103 of the Act, the applicant confirmed that he had never sat the IELTS tests. He stated that he regrets his actions and is sorry.

6. On the evidence before it, the Tribunal finds that the information given in the visa application form about the applicant having sat an IELTS test is incorrect. Accordingly, the applicant has not complied with s.101(b) as described in the notice. The Tribunal further finds that the IELTS report provided with the application is a bogus document, as defined in s.5(a) of the Act, because the Tribunal reasonably suspects that the document purports to have been, but was not, issued in respect of the applicant. Accordingly, the applicant has not complied with s.103 as described in the notice.

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

Should the visa be cancelled?

1. 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).

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

1. The correct information is that the applicant did not sit the IELTS test on 18 May 2013 which was relied upon to obtain the visa. The applicant knowingly provided incorrect information as part of his visa application to secure a migration outcome.

2. When the above was discussed with the applicant at the hearing, he stated that he sincerely regrets his actions and is sorry. He stated that he engaged in this conduct because he wanted to look after his family and a better future for his son.

3. The Tribunal gives some favourable weight to the applicant’s prompt admission of wrongdoing. However, the Tribunal also notes that if the correct information about the applicant having not undertaken the IELTS test was known by the Department, the applicant would not have been granted the visa. This consideration weighs in favour of cancellation.

The content of the genuine document (if any)

1. The relevant document in this case is the IELTS test report in respect of the test undertaken on 18 May 2013. The results achieved in that test, as indicated on the report, were not achieved by the applicant, as he had not sat the test, but were achieved by an imposter.

2. In commenting on the above, the applicant stated that he was sorry and that he and his family loved Australia so much and wanted to stay.

3. The Tribunal acknowledges that the applicant was in Australia on a temporary work (Subclass 457) visa at the time he applied for the Regional Sponsored visa, the subject of this review, however, wishing to remain in Australia does not justify the provision of a bogus document in support of a visa application. The Tribunal considers that if the Department had known that the scores in the IELTS test report submitted with the visa application were achieved by someone other than the applicant, they would not have granted the applicant the visa. This consideration weighs in favour of cancelling the 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

1. Subject to specified exemptions, the applicant would have had to demonstrate that he had the required level of English language proficiency to be granted the permanent Regional Sponsored visa. The Tribunal considers that the decision to grant the applicant the visa was based partly on the incorrect information provided in the application form about him having sat an IELTS test and the corresponding bogus document, namely the IELTS test report, indicating that the applicant had achieved the required scores.

2. In commenting on the above, the applicant stated that he was sorry to the Australian government. He stated that he came to Australia because there was a need for his trade skills as a fitter and he wants to use his skills to contribute to Australia.

3. The Tribunal has considered the evidence relating to the applicant’s skills and his contribution to Australia further below. However, against this consideration, the Tribunal finds that the decision to grant the applicant the visa was based, in part, on the incorrect information and bogus document. The Tribunal gives substantial weight to this consideration in favour of cancelling the visa.

The circumstances in which the non-compliance occurred

1. The non-compliance occurred when the applicant lodged the Regional Sponsored visa, which included incorrect information and a bogus document.

2. At the hearing, the Tribunal put to the applicant that on the evidence before it, it appears that he knowingly and deliberately provided incorrect information and a bogus document at the time of the visa application so as to secure a migration outcome and that it considered his conduct, which purposely sought to mislead the Department, weighs strongly in favour of cancelling the visa.

3. In commenting on the above, the applicant stated that he regrets his conduct and hopes to be given another opportunity to do something beneficial like passing on his skills to young Australians and apprentices. 

4. The Tribunal acknowledges the applicant’s remorse and has considered his willingness to contribute to the training of young Australians further below, however, this does not change the fact that the applicant knowingly sought to defraud the Department to secure a permanent visa. This consideration weighs strongly in favour of cancelling the visa.

The present circumstances of the visa holder

1. The applicant has resided in Australia since 31 October 2012. Initially he travelled to Australia as the holder of a Temporary Work (Subclass 457) visa to work as a fitter.

2. The applicant’s spouse and child travelled to Australia in May 2013. At that time, the applicant’s son was 13 years of age.

3. Whilst onshore, the applicant and his family applied for the permanent Regional Sponsored visa, the subject of this review, which was granted on 1 September 2015.

4. The applicant and his spouse purchased a property in Canning Vale WA, evidence of which was provided to the Tribunal, which was partly funded by a loan from Westpac Bank. The Tribunal received submissions and supporting information indicating that property, which was purchased for $568,000, is currently valued at $490,000 due to the decline in property values in WA. It was submitted that if the applicants had to sell the property in the current market, they would incur a financial loss. Mortgage documents provided indicate that the mortgage currently outstanding on the property is $186,128. It was submitted that this is the only property owned by the applicants, that they do not own any property in China, and that it would be difficult for them to relocate if their visas were cancelled.

5. In relation to his employment, the applicant gave evidence that he is currently employed by Support Vehicles Australia (SVA) in Western Australia as a fitter. The applicant gave evidence that he commenced work with SVA in 2012. He stated that from 2015 to 2017 the company was not making much profit and they suggested he leave until the situation improves. He stated that during that time he worked in several other jobs for which he paid taxes.

6. The applicant gave evidence that he resumed employment as a fitter with SVA in 2017.  In response to the Tribunal’s queries about his employment with SVA, the applicant stated he fixes, assembles and adjusts equipment. He stated that SVA is a large company which employs many people, including other fitters. He stated that he is responsible for teaching apprentices and that he can communicate in conversational English to pass on his skills. When asked if SVA were aware that he had provided fraudulent documents in relation to his English language skills when applying for the permanent employer sponsored visa, the applicant stated that they did not know the details but he explained the whole situation to his manager, Mr Chapman Lee, after the visa was cancelled. The applicant stated that Mr Lee agreed to write a letter of support for him because he (the applicant) is a hard worker.

7. In support of the applicant’s Australian employment claims, the Tribunal received a statutory declaration and oral evidence at the hearing from the Production Manager at SVA, Mr Chapman Lee. In his statutory declaration, Mr Lee stated that the applicant has an important mentoring role in relation to the apprentices that he trains and that his combination of skills and experience as a senior fitter is not readily replaceable. He estimates the value of the applicant’s work in the business this year to be about $200,000. He stated that a favourable decision will prevent an economic loss to the business and provide quality training opportunities to more young Australians.

1. At the hearing, the Tribunal asked Mr Lee about the applicant’s role in the business, about his English language skills and whether, with some effort on the part of the business, the applicant could be replaced. Mr Lee stated that the applicant is a highly skilled fitter who has been passing on his skills to the apprentices he supervises. He stated that while the applicant’s English was not that great (not fluent), the applicant has still been able to effectively communicate and undertake his employment at a high level. Mr Lee stated that given the position is a technical one, the applicant can show apprentices what to do and how to do it, so on a technical level he can effectively communicate. When asked if SVA employed other fitters in the business and whether they can provide training to apprentices, Mr Lee stated that SVA had twenty other fitters, ten of whom would also have apprentices working with them. He further stated that the applicant was one of their senior fitters and is a highly valued member of the team. He stated that it is difficult to secure skilled fitters for the industry and that on a personal level the applicant interacts well with others.

2. At the hearing, the applicant also gave evidence that it would be difficult for him at his age to secure employment in China. He claimed that if he returns to China it would difficult for him to catch up and it would be impossible to find work as a fitter. When the Tribunal put the applicant that China is his home country, that he is fluent in the language, that he has extensive experience as a fitter in both China and Australia and that he could make efforts to re-establish himself in China, the applicant stated that they will survive but in Australia he can have good meals, such as meat, whereas in China the meals are simple and it would affect his family as they will not have enough funds to look after the parents.

3. The evidence before the Tribunal also indicates that the applicant’s siblings, Mr Youli Xiong and Mr Youming Xiong, are permanent residents. The applicant informed the Tribunal that he has no siblings in China, though his parents are in China. When asked about his spouse’s family, he stated that his wife’s parents and sister reside in China. The applicant gave evidence that he does not have any assets in China.

4. In relation to whether he, his spouse or his son had travelled back to China since arriving in Australia, the applicant gave evidence that he travelled to China for one week in May 2013 to collect IELTS test report, but that his wife and son have not been back.

5. In their statutory declarations, the applicant’s brothers state that they share a close relationship as siblings, they support one another and spend most weekends together. They state that the applicant sincerely regrets his actions and that he is a person of good character. They state that the cancellation would cause significant hardship for the applicant and his family as they consider Australia home. They also set out the difficulties that the applicant’s son would encounter if he returned to China.

6. The Tribunal has considered the present circumstances of the applicant as follows.

7. The Tribunal accepts that the applicant and his family have resided in Australia for over 7 years. While this may seem like a long period of time, the Tribunal notes that for much of that period the applicant and his family were holders of temporary visas. Furthermore, the applicant has been on notice, since January 2017 when the cancellation notice was issued, that his permanent employer sponsored visa, which he held for less than one and a half years, was subject to cancellation.

8. The Tribunal acknowledges that the applicant and his spouse have purchased a property in Australia and accepts that they have no assets in China. The Tribunal gives some favourable weight to the fact that the applicant has assets, and hence financial ties, in Australia.

9. The Tribunal also considers that the applicant and his spouse could sell their property in Australia and while they may not be able recoup the full amount they paid for the property, the Tribunal considers that given they only have a mortgage of $186,128 remaining, they would still have a substantial amount (approximately $300,000) if they sold it at the estimated value of $490,000. The Tribunal considers that that the applicant and his family can rely on these funds to re-establish themselves in China and support the parents.

10. The Tribunal also accepts that the applicant has strong family ties, given the presence of his siblings, both of whom are permanent residents, in Australia. The Tribunal accepts that the applicant and his brothers are close, support one another and spend a lot of time together. While the Tribunal gives some favourable weight to the applicant’s family ties in Australia, it also notes that the applicant and his spouse have family in China, including his and his spouse’s parents and his spouse’s sister.

11. In relation to the applicant’s employment, the Tribunal acknowledges that the applicant is employed by a business that values him. The Tribunal accepts that the applicant is a skilled fitter who trains young Australians in the trade and that replacing him would be difficult and may cause an economic loss for the business. While these factors weigh in favour of not cancelling the visa, the Tribunal also notes, as indicated by the applicant and Mr Lee’s evidence, that SVA is a large business which employs other fitters. While SVA may be inconvenienced and may experience some financial loss if it could not maintain the applicant’s employment, the Tribunal considers that this would be limited. The Tribunal has formed the view that the business, given its size and employment of other fitters, would be able to make alternative arrangements for the training of its apprentices until a replacement could be found. 

12. The Tribunal acknowledges the applicant’s concern about securing employment in China because of his age. The Tribunal considers however that the applicant, who is 46 years of age, still has many working years left. While the Tribunal acknowledges the difficulties that the applicant may initially encounter in securing employment upon returning to China, the Tribunal considers that the applicant’s extensive experience as a fitter in China and Australia would stand him in good stead to secure suitable employment in China. The Tribunal does not discount the challenges and difficulties, including the financial and emotional hardship, that the applicant and his family would encounter upon their return to China. The Tribunal acknowledges that the applicant prefers to live in Australia where he is employed, has assets, has siblings and can have better meals.

13. In considering the applicant’s present circumstances, the Tribunal accepts that many aspects of those circumstances, including his financial ties, current employment and family ties weigh in favour of not cancelling the visa.

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

1. The applicant was under obligation, as required by s.105 of the Act, to correct the incorrect information provided in the visa application form about him having sat an IELTS test. The applicant did not comply with that obligation until after receiving the notice in 2017.

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

1. The delegate noted that there was no information to suggest that there were any other instances of non-compliance by the applicant, and there is no evidence before the Tribunal which indicates any other incidents of non-compliance.

The time that has elapsed since the non-compliance

1. The non-compliance occurred when the applicant provided the incorrect information on the visa application form and provided the bogus document with the visa application, which was lodged in March 2015. A period of over five years has therefore elapsed since the non-compliance.

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

1. There is no information before the Tribunal which indicates that there have been any breaches of the law since the non-compliance.

Any contribution made by the holder to the community.

1. The Tribunal accepts, as submitted by the representative, that the applicant has contributed to the community through his employment in a skilled trade in WA. The Tribunal also considers the applicant’s training of apprentices as part of his employment with SVA to be a contribution to the community.  The Tribunal gives some weight to this consideration in favour of not cancelling the visa.

2. While the above 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 Procedures 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.

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

4. The cancellation of the applicant’s visa would result in the applicant being unlawful and subject to detention only in circumstances where the applicant does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by him ceases. The Tribunal acknowledges that due to the circumstances of Covid-19 and restrictions placed on international travel, that the applicant and members of his family may not be able to depart Australia for some time. The Tribunal notes however that in the circumstances the applicant and his family would be able to apply for bridging E visas which, if granted, would enable them to remain lawfully in Australia until such time they are able to depart.

5. The Tribunal also notes that if the applicant’s visa is cancelled, he would be affected by s.48 of the Act and would not be able to make a valid application for a substantive visa in Australia, other than the limited types prescribed in r.2.12, such as protection and partner visas.

6. The Tribunal considers that any adverse consequences of cancellation, as discussed above, are intended by the legislation and accordingly gives this consideration limited weight in favour of not cancelling the visa.

7. The delegate noted in the decision record that if the applicant’s visa is cancelled, he would be affected by Public Interest Criterion 4013 (PIC 4013) which would limit the granting of a further temporary visa for a specified period. The Tribunal notes that PIC 4013 imposes a ban of three years ‘after cancellation of the visa’ from making an application for another visa for which PIC 4013 must be satisfied, unless the Minister is satisfied that there are compelling circumstances that affect the interest of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation. The Tribunal notes that the applicant’s visa was cancelled by the delegate on 16 February 2017. Therefore, more than three years have passed since the delegate made the decision to cancel the applicant’s visa. If the Tribunal decides that the visa should be cancelled, then the delegate’s decision remains unchanged and the applicant’s visa is taken to have been cancelled on 16 February 2017. In the circumstances, as more than three years have now passed, the applicant will not be affected by PIC 4013.

8. The Tribunal has also considered whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.

9. At the hearing, the Tribunal asked if there was a reason, other than those he had previously mentioned, that he cannot return to China. In response, the applicant stated that he has a health condition. When asked to explain further, the applicant stated that when it gets cold, he gets dry skin and his skin cracks. He stated that his spouse and child are in Australia and that his son has been in Australia since he was 13 years of age and only has a certificate III in cookery which he cannot rely on to obtain employment in China because they cook very differently there.

10. In considering these claims, the Tribunal notes that there is limited evidence before it which suggests that the applicant’s skin condition is not able to be treated in China. The Tribunal formed the view that the applicant’s skin condition is more of an irritation in cold weather rather than a serious medical condition. The Tribunal has had regard to the applicant son’s circumstances further below.

11. In relation to Australia’s non-refoulment obligations, there is limited evidence before the Tribunal which suggests that Australia’s non-refoulment obligations would be breached as a result of the cancellation. The Tribunal notes that at the time of the delegate’s decision the applicant’s son was 17 years of age and the delegate had regard to the best interest of the child. At the time of this decision however, the applicant’s son is 19 years of age and is no longer a child as defined in the Convention on the Rights of the Child (CROC), being a person under the age of 18. The Tribunal notes that if the applicant’s visa is cancelled, his spouse and son’s visas will be consequentially cancelled. All members of the family will therefore have the same visa status. The applicant, his spouse and son are all citizens of China and they would be able to reside in China as a family if they wished to do so.

12. The Tribunal accepts that cancellation of the applicant’s visa would result in the consequential cancellation of his spouse and son’s visas. The applicant gave evidence that his spouse and child were not aware of the non-compliance and are the innocent victims of his wrongdoing.

13. The Tribunal has had regard to the spouse (Ms Chen) and the son’s circumstances, as detailed in their written and oral evidence, and has considered the hardship that may be caused to them if the applicant’s visa is cancelled.

14. The applicant’s spouse is currently employed as a factory hand on a casual basis. In her statutory declaration, Ms Chen stated that she had no knowledge of the IELTS test or bogus documents. She stated that there is nothing in China for her family because they sold all their assets before relocating to Australia. If they sell their house in Australia most of the proceeds will be required to discharge the mortgage and it will be hard for them to afford a house in China as property prices there are significantly higher. Ms Chen expressed her concern about her son’s future and stated that it will be difficult for him to adapt to the Chinese lifestyle and culture as his Mandarin language skills are not strong. Ms Chen gave evidence that she is concerned about finding employment, as her and her husband’s age group are not the main labour force in the Chinese labour market.

15. In her oral evidence at the hearing, Ms Chen stated that she understood her husband’s conduct was serious and asked that he be forgiven. She stated that they were mostly concerned about the welfare of their son, who would struggle if he had to return to China. The Tribunal asked Ms Chen if her son could not return on some other visa, such as a student visa or a temporary work visa, given he has qualifications as a cook; she stated that they will look into those options. She stated that she hoped that her son can be given an opportunity to stay in Australia and that they can stay with him for a bit longer. 

16. The Tribunal acknowledges the emotional and financial hardship that may be experienced by Ms Chen if the visa is cancelled and she has to return to China. The Tribunal also acknowledges Ms Chen’s concerns about readapting to life in China and securing employment there. The Tribunal notes however that China is Ms Chen’s home country, she is fluent in the language and she has family, including her parents and sister, who reside in China. Also, as discussed above, Ms Chen and the applicant can choose to sell their property in Australia and live off the proceeds upon discharging the mortgage. This could ameliorate any financial hardship that may they may initially experience upon their return to China. The Tribunal nevertheless gives some weight to the hardship that may be experienced by Ms Chen in favour of not cancelling the visa.

17. The Tribunal also acknowledges Ms Chen’s concern about her son’s future and the difficulties he may experience if he had to return and readapt to life in China, given he has spent his adolescent years in Australia. The Tribunal gives some weight to this consideration in favour of not cancelling the visa. The Tribunal though also formed the view that the applicant’s son, who is now an adult, can seek advice regarding his options for returning to Australia on another visa.

18. In his statutory declaration, the applicant’s son (Mr Chen Xiong) stated that he works full-time at Authentic Bites Dumpling House. He stated that he has lived in Australia since he was a young child, has long standing friendships, was educated in Australia and has a stronger connection with Australian than with China. He stated that he would experience considerable emotional and financial hardship if his father’s visa is cancelled and they had to relocate to China. He stated that he does not have a formal higher education degree in Australia or China and that he has only completed a Certificate III in Asian Cookery. He stated that his Chinese language skills are barely functional. He hopes to open his own restaurant business in Australia. At the hearing, Mr Chen Xiong indicated, in response to the Tribunal’s query, that his employer would probably sponsor him for a work visa. He stated that it would be difficult for him to return to China because all his friends are in Australia and Chinese cooking was very different from Australian cooking. He gave evidence that he has not attended Chinese language school in Australia so would struggle to adjust in China.

19. The Tribunal also received a statutory declaration and oral evidence from Mr Chen Xiong’s employer, Mr Yang Song, the owner of Authentic Bites Dumpling House. Mr Song spoke highly of Mr Chen Xiong’s work ethic and skills as a cook. He indicated that he would consider sponsoring Mr Chen Xiong on a work visa. In his written statutory declaration, Mr Song stated that Mr Chen Xiong joined the team four years ago and has gained the skills to make the best seller, and signature dish, which normally takes years to learn. He stated that they are lacking staff with Australian hospitality training qualifications but that Mr Chen Xiong meets that need as he acquired his knowledge at TAFE and shares his skills with the team. Mr Song stated that they are planning to extend the business in the northern suburbs and that Mr Chen Xiong is one of the key people to make this happen as he will take over the chef’s responsibility. When asked if he would pursue these plans even Mr Chen Xiong could not remain in Australia, Mr Song indicated that he would likely give up on the idea.

20. After the hearing, the Tribunal received written submission from the representative in response to the Tribunal’s observation, as noted at the hearing, that Mr Chen Xiong would not be affected by the risk factor in PIC 4013, which imposes a three year ban on applying for another visa from the date of cancellation, and that he could be sponsored for a work visa by his employer. It was submitted that even if Mr Chen Xiong is not affected by PIC 4013 and could apply for another visa from offshore, it is doubtful that the Department would grant him a visa without issue given his background and travel history. It was also submitted that even though Mr Song confirmed at the hearing that he is willing to sponsor Mr Chen Xiong for a work visa, Mr Chen Xiong only holds a certificate III in cookery and does not have the required level of qualification or employment experience to be eligible for sponsorship under the current work programs, some which require a diploma level qualification and up to three years of full time experience. It was submitted that Mr Chen Xiong would have to continue studies in Australia for another two years and work full time as a chef or cook for at least two years post-graduation to be eligible for sponsorship.

1. In addition to the above, it was also submitted if the applicant’s visa remains cancelled, it would prevent Mr Chen Xiong’s study plans and he would not be able to contribute to Australian business or the community. It was submitted that the son’s continued stay in Australia would contribute to Australian schools, business and communities through him undertaking further studies in Australia as an international student, part-time employment, including assisting his employer to expand the business and establishing his own restaurant. It was submitted that the applicant is a victim of his father’s non-compliance and would experience difficulties if he has to return to China and that it would take a long time for him to adapt without the support of family and friends, all of whom are in Australia.

2. The Tribunal has had regard to the evidence before it regarding the hardship that would be experienced by the applicant’s son if the visa is cancelled. The Tribunal acknowledges that notwithstanding Mr Song’s willingness to sponsor Mr Chen Xiong, he may not meet the minimum skills, qualifications and employment requirements for a work visa. The representative’s submission suggested that Mr Chen Xiong may wish to study further in Australia. The Tribunal notes that it is also possible for Mr Chen Xiong to apply for a student visa so that he can complete further studies in Australia.  While there is no guarantee that such a visa would be granted, the Tribunal nevertheless considers that this is an option that is open for Mr Chen Xiong to pursue. The Tribunal has also had regard to the fact that Mr Chen Xiong would not be able to apply for a student visa in Australia if his visa is consequentially cancelled, as he would be barred from doing so by s.48 of the Act. In the circumstances, Mr Chen Xiong would have to make the student visa application from offshore. The Tribunal notes that Mr Chen Xiong would not be affected by the three year ban in PIC 4013, which relates to cancellations under s.109 of the Act, because the cancellation of Mr Chen Xiong’s visa would be under s.140 of the Act, and not be under s.109 of the Act, being the section under which his father’s visa is liable for cancellation. 

3. The Tribunal also acknowledges the difficulties and the hardship that Mr Chen Xiong may experience if his father’s visa is cancelled and he has to return to China and adjust to life there. The Tribunal gives some weight to the emotional hardship that may be experienced by Mr Chen Xiong if he had to return and readjust to life in China, given he has spent most of his teenage years in Australia where he has formed friendships and has secured employment. The Tribunal acknowledges, as submitted by the representative, that Mr Chen Xiong wishes to pursue further studies and work in Australia, the Tribunal  acknowledges that Mr Chen Xiong may not be able to apply for an appropriate visa in Australia which would enable him to do this if his father’s visa is cancelled and he may have to return to China to lodge an application from offshore. The Tribunal also accepts that Mr Chen Xiong, who played no part in his father’s wrongdoing, is an innocent victim of his father’s non-compliance. The hardship that may be experienced by Mr Chen Xiong if his visa is consequentially cancelled weighs in favour of not cancelling the visa.

4. The Tribunal further notes that given the current circumstances due to Covid-19 and the travel restrictions, Mr Chen Xiong may not be able to depart Australia in the foreseeable future. In the circumstances, Mr Chen Xiong can apply for a bridging E visa to allow him to remain lawfully in Australia until any travel restrictions are eased and he is able to depart Australia. The Tribunal also notes that Mr Chen Xiong may be able to seek permission to study and work whilst living in Australia on a bridging E visa.

5. The Tribunal has also considered the hardship that may be experienced by Mr Song and the disruption that may occur to his business expansion plans if he could not maintain the employment of Mr Chen Xiong. The Tribunal, however, gives limited weight to this hardship because the Tribunal does not consider it an uncommon occurrence for a small business to lose a valuable employee.

Other considerations

1. The Tribunal has also considered the submission and supporting documents regarding the skills shortages in Western Australia. The Tribunal received a Department of Jobs and Small Business Labour Market Report, dated December 2018, regarding the status of Engineering trades in WA, including for the occupation Metal Fitters and Machinists, which indicates that employers struggle to fill vacancies due to the low availability of qualified applicants, remuneration issues and the lack of applicants with specialist experience and skills.

2. It was submitted that the applicant possesses suitable skills to address the skills shortage of qualified fitters in WA. It was also submitted that SVA is one of the most reputable suppliers of machinery to the mining and construction industries in WA. The Tribunal accepts these submissions and gives them some weight in favour of not cancelling the visa.

Conclusion  

1. In considering whether the visa should be cancelled, the Tribunal has carefully weighed up all the relevant circumstances. In this case, there are circumstances that weigh in favour of not cancelling the visa, such as the applicant’s employment in an in demand occupation, his family, employment and financial ties to Australia and the emotional and financial hardship that may be experienced by the applicant’s spouse and son, who were not involved in any wrongdoing.

2. Against the above however are circumstances which weigh strongly in favour of cancellation, with the most significant of these being the fact that the applicant would not have been entitled to the grant of the employer sponsored visa had the Department known that an imposter, and not the applicant, had sat the English language test and achieved the scores that the applicant relied upon in his application for the visa. The applicant’s conduct in providing incorrect information and a bogus document to secure a permanent visa was deliberately deceptive and seriously undermined the integrity of Australia’s migration program. For these reasons, the Tribunal considers that the visa should be cancelled.

3. 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.

4. The representative has requested that the Tribunal consider referring the matter to the Minister for intervention in the family’s situation, and particularly that of the applicant’s son. The Tribunal does not consider it appropriate to refer the matter to the Minister, mainly because the compassionate circumstances that arise in this case relate to the applicant’s son and the Tribunal has no jurisdiction in respect of the son as his visa was cancelled by operation of law under s.140 of the Act. Furthermore, given the adverse findings made regarding the applicant’s conduct, the Tribunal does not consider it appropriate to refer this matter. The Tribunal notes however that the applicant can still make a direct request to the Minister under s.351 of the Act.

DECISION

1. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Sponsored Migration Scheme visa.

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

R. Skaros
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Bogus 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).

8. Notice 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.

9. Decision 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.

10. Cancellation 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.