You (Migration)

You (Migration) [2020] AATA 2590 (14 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jianfeng You
Mrs Huiping Lin
Ms Lingjing You
CASE NUMBER:  1815161
DIBP REFERENCE(S):  BCC2017/746960
MEMBER:Michael Cooke
DATE:14 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 14 May 2020 at 2:27pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect information in application – bogus document – information and documents related to completed English tests – alleged misconduct of agent – expectation that competent English would be required to comply with rigorous standards of applicant’s profession – indications of applicant’s ‘reckless indifference’ and ‘wilful blindness’ – disruption and hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 101, 103, 107, 109, 140, 189
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 457.223

CASES
Gill v MIBP [2016] FCAFC 142
Katragadda v Minister for Immigration & Anor [2020] FCCA 723
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53
MIAC v Khadgi (2010) 190 FCR 248
Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188

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 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant submitted a counterfeit document with and incorrect information on - his visa application. The issue in the present case is whether that ground for cancellation is 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 applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Huiping Lin - the second named applicant. 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.
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
The Hearing
The applicant and his wife gave evidence to the Tribunal as follows. The applicant confirmed that they were totally unaware that the information forwarded to the Department by their agent was bogus. They were unaware that they had provided incorrect information on the visa application form. They were ignorant of the details and could not read English. The agent had taken charge of the application. The applicant signed off on it - thinking it was all correct and genuine. He trusted the agent. He confirmed his statement to the Department that he had never done an IELTS test. He was not even aware he had to get one anyway. Many folk from his home town had gone to work in Australia. They never needed an IELTS language certificate. He confirmed that his Subclass 457 visa would have expired on 24 November 2018.
The Tribunal pointed out that the actions of the agent effectively became his actions. Anything the agent submitted to the Department was effectively submitted by him as far as the migration law was concerned. The Tribunal said it appreciated his candour with the Department regarding his disclosure of the IELTS certificate being bogus. It would give positive weight to this consideration.
The applicant informed he was a butcher and had been working as a boner in an abattoir up to May 2018. Following the cancellation decision, he was unemployed. He had not approached the Department for work rights as they could not afford a migration agent. His wife informed that she did not have permission to work and they lived off savings and borrowed from friends. His elder daughter was at university in Western Australia studying nursing on a Student visa. They contributed to her upkeep. The youngest daughter was in year 2 of primary school in Sydney.
In mitigation the applicant pleaded with the Tribunal that his error had not been deliberate but a product of ignorance of English and misplaced trust in his migration agent. The agent had engaged in misconduct of which he was unaware until 4 years after he had arrived in Australia. He had never attempted to rort the system and had been a lifelong solid citizen who obeyed the law and had no criminal history. He knew nothing about migration regulations. In his personal statement he said his life was hard without a job. He felt he had been unlucky with the behaviour of the agent. He regretted trusting his agent.
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.
The NOICC
Particulars of the possible non-compliance:
The delegate elaborated the Notice of Intention to Cancel as follows:
I consider that there has been non-compliance with the following section(s) of the Migration Act 1958:
Section 101. Visa applications to be correct
s.101. A non-citizen must fill in or complete his or her application form in such a way that:
(b) no incorrect answers are given or provided.
By operation of s99 of the Act, 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.
Section 103. Bogus documents not to be given etc.
s.103. "A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided."
At the time, Section 97 of the Migration Act 1958 defines a bogus document, for the purposes of the Act as follows:
"bogus document", in relation to a person, means a document that the Minister reasonably suspects is a document that: purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly.
On 4 November 2014, you lodged an application for a Temporary Work (Skilled) visa via the Department's online lodgement facility. As part of this application you completed and signed form ‘Long-Stay Temporary Business Visa’. This form contains a number of questions including the following:
On page 13 of Long Stay Temporary Business Visa under 'Declaration by applicant' you answered" Yes" to the following:
I understand that this Declaration relaters to all persons included in this application seeking to enter Australia. I understand that this visa application may be refused where bogus documents or information that is false or misleading is presented to the Department, including by a third party acting on our behalf. I understand that this also applies to a previous application relating to myself, or a member of my family unit included in this application. / also understand that if information or documents submitted in support of an application are found to be fraudulent or misleading after the grant of a visa, it may subsequently be cancelled.
On page 10 of Long-Stay Temporary Business Visa under the heading 'language ability' it asks
"Have you undertaken an English test in the last 36 months?" You stated "yes".
On page 10 of Long-Stay Temporary Business Visa under "give details of the most recent English test" You stated:
Name of test: IELTS
Test reference number 12CN052 139FUHX739A
Speaking: 4
Reading: 4.5
Writing: 6
Listening: 5.5
Test score! Overall band score: 5
The IELTS Test Report Form (TRF), Test Reference Number: 12CN052139FUHX739A dated 22 August 2014 was submitted in association with your application. This contained a photograph of the candidate and the following information:
Centre Number. CN856
Centre Name: British Embassy Cultural & Education Section Beijing
Candidate Number: 084543
Family Name: YOU
First Name: Jianfeng
Candidate ID: - 350124197312033917
Date of Birth: 23/10/1973
Sex: Male
Writing Examiner Number 953097
Speaking Examiner Number: 956142
Test Examination Date: 22108/2014
Listening: 5.5
Reading: 4.5
Writing: 6.0
Speaking 4.0
Overall Band Score: 5.0
At time of application for a Temporary Work (Skilled) visa you were required to meet Migration Regulation 457.223(eb) which states:
R.457.223(eb) If:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant: has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and (ec) if the Minister requires the applicant to demonstrate his or her English language proficiency - the applicant demonstrates his or her English language proficiency in the manner specified by the Minister;
Competent English is further defined in Regulation 1.15C which states:
(1) A person has competent English if the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and the person is an applicant for a visa; and
(ha) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa - the test was conducted in the 3 years immediately before the date of the invitation; and (bb) for a person to whom paragraph (ba) does not apply - the test was conducted in the 3 years immediately before the day on which the application was made; and the person achieved a score specified in the instrument.
In order to meet this regulatory requirement, you were required to undertake an IELTS test and return a score that demonstrates that your English language ability is competent. You submitted the IELTS test results with an overall band score of 5.5 which demonstrated that your English language ability is competent (TRF Number: 12CN052139FU} -1X739A dated 22/08/2014) via the Department's online lodgement facility.
This IELTS TRF was an essential part of the visa application process and played an integral part in the decision to grant your Temporary Work (Skilled) visa on 24 November 2014.
On 19 January 2018 the Department provided a copy of your IELTS test result to lDP Education Pty Ltd for verification of the document's authenticity. On 22 January 2018 the Department received confirmation from IDF Education that your IELTS test result does not match their records.
On 5 February 2018 the Department received further advice from IDP Education Pty Ltd. They have advised that the TRF number 12CN052139FUHX739A does not match the standard IELTSTRF naming convention - an IELTS test undertook in August 20141 the TRF number would start with 14 rather than 12.
On page 10 of Long-Stay Temporary Business Visa under the heading 'language ability' it asks
"Have you undertaken an English test in the last 36 months?" You stated "yes".
I consider your answer incorrect, because subsequent integrity checks by IDP Education Pty Ltd on 22 January 2018, confirmed that the IELTS test results that you provided with your application do not match their records.
On page 10 of Long-Stay Temporary Business Visa under "give details of the most recent English test" You stated:
Name of test: IELTS
Test reference number 12CN052 139FUHX739A
·     Speaking: 4
·     Reading: 4.5
·     Writing: 6
·     Listening: 5.5
Test score / Overall band score: 5
I therefore consider your answer incorrect, because subsequent integrity checks by IDP Education Pty Ltd on 22 January 2018, confirmed that the IELTS test results that you provided with your application do not match their records according to the TRF number naming convention. I therefore consider that you either did not undertake the IELTS test or that you have fraudulently altered this document prior to lodging your visa application.
I therefore consider that you have not complied with Section 101(b) of the Act because in support of your application and in order to satisfy the legislative requirements for the grant of a visa; you provided incorrect information in response to questions "Has the applicant undertaken an English Language test within the last 36 months?" and "Give details of the most recent English test' on page 10 of Long-Stay Temporary Business Visa.
I also consider that you have not complied with Section 103 of the Act because in support of your application and in order to satisfy the legislative requirement for the grant of a visa: you have submitted an IELTS test certificate which "is counterfeit or has been altered by a person who does not have authority to do so in this case, you.
Therefore, I consider that your Temporary Work (Skilled) subclass 457 visa is liable for cancellation under section 109 of the Migration Act 1958.
Evidence of non-compliance:
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 in the following respects.
On 4 November 2014, the applicant lodged an application for a Temporary Work (Skilled) visa via the Department’s online lodgement facility. As part of this application he completed and signed the form ‘Long-Stay Temporary Business Visa’. This form contains a number of questions including the following below.
On page 13 of the form ‘Long Stay Temporary Business Visa’ under ‘Declaration by applicant’ the applicant answered “Yes” to the following:
I understand that this Declaration relates to all persons included in this application seeking to enter Australia. I understand that this visa application may be refused where bogus documents or information that is false or misleading is presented to the Department, including by a third party acting on our behalf. I understand that this also applies to a previous application relating to myself, or a member of my family unit included in this application. I also understand that if information or documents submitted in support of an application are found to be fraudulent or misleading after the grant of a visa, it may subsequently be cancelled.
On page 10 of Long-Stay Temporary Business Visa under the heading ‘language ability’ it asks:
“Have you undertaken an English test in the last 36 months?” The visa holder stated “yes”.
On page 10 of Long-Stay Temporary Business Visa under “give details of the most recent English test” the applicant stated:
Name of test: IELTS
Test reference number: 12CN052139FUHX739A
Speaking: 4
Reading: 4.5
Writing: 6
Listening: 5.5
Test score / Overall band score: 5
The IELTS Test Report Form (TRF), Test Reference Number: 12CN052139FUHX739A dated 22 August 2014 was submitted in association with the applicant’s application. This contained a photograph of the candidate and the following information:
Centre Number: CN856
Centre Name: British Embassy Cultural & Education Section Beijing
Candidate Number: 084543
Family Name: YOU
First Name: Jianfeng
Candidate ID: 350124197312033917
Date of Birth: 23/10/1973
Sex: Male
Writing Examiner Number: 953097
Speaking Examiner Number: 956142
Test Examination Date: 22/08/2014
Listening: 5.5
Reading: 4.5
Writing: 6.0
Speaking 4.0
Overall Band Score: 5.0
At time of application for a Temporary Work (Skilled) visa the applicant was required to meet Migration Regulation 457.223(eb) which states:
Reg.457.223(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister;
In order to meet this regulatory requirement, the applicant was required to undertake an IELTS test. The applicant submitted the IELTS test results with an overall band score of 5 (TRF Number: 12CN052139FUHX739A dated 22/08/2014) via the Department’s online lodgement facility.
This IELTS TRF was an essential part of the applicant’s visa application process and played an integral part in the decision to grant the applicant his Temporary Work (Skilled) visa on 24 November 2014.
On 19 January 2018 the Department provided a copy of the applicant’s IELTS test result to IDP Education Pty Ltd (which is the company responsible for assessing and monitoring IELTS tests) to verify the authenticity of the IELTS document. On 22 January 2018 the Department received confirmation from IDP Education that the applicant’s IELTS test result did not match their records.
On 5 February 2018 the Department received further advice from IDP Education Pty Ltd which advised that the TRF number 12CN052139FUHX739A did not even match the standard IELTS TRF naming convention. For example, for an IELTS test undertaken in August 2014, the TRF number would start with the number 14 rather than with the number 12.
A further issue concerned the applicant’s visa application. On page 10 of the form ‘Long-Stay Temporary Business Visa’ under the heading ‘language ability’ the question is asked:
“Have you undertaken an English test in the last 36 months?”
The applicant stated “yes” in answer to the question.
The Tribunal considers the applicant’s answer to be incorrect because subsequent integrity checks by IDP Education Pty Ltd on 22 January 2018 confirmed that the IELTS test results that he provided with his application did not match their records.
Furthermore, on page 10 of the document ‘Long-Stay Temporary Business Visa’ under the heading “give details of the most recent English test” - the applicant stated:
Name of test: IELTS
Test reference number: 12CN052139FUHX739A
Speaking: 4
Reading: 4.5
Writing: 6
Listening: 5.5
Test score / Overall band score: 5

The Tribunal considers the applicant’s answer to also be incorrect because subsequent integrity checks undertaken by IDP Education Pty Ltd on 22 January 2018 confirmed that the IELTS test results (which he provided with his application) did not match their records - according to the TRF number naming convention. Thus, the Tribunal considers that the applicant did not undertake an IELTS test on 22 August 2014 and thus did not achieve an overall band score of 5. The applicant has personally confirmed this finding.
The applicant, in mitigation, has adamantly insisted that he had no idea that the documents submitted by his agent (with his application) included a false document (the IELTS test). He insists he entrusted his agent to complete the visa application due to his lack of knowledge of English. He was unaware of the incorrect information that was inscribed on the form(s) by his agent.
In response to the NOICC, the visa holder’s representative has provided the following statement (with translation) from the visa holder:
·The visa holder felt shocked when he received the NOICC, as he had a general idea about the requirements of the Temporary Work (skilled) visa as many people in his hometown have applied for the Australian working visa.
·As far as the visa holder knew before he came to Australia, the Temporary Work (skilled) visa is mainly for skilled professionals who are eligible to apply for long-term working visas, with exemption for English requirements.
·Many people from the visa holder’s hometown, (who have skills but don’t know English), had been granted visas.
·The visa holder was introduced to a Migration agent prior to lodging his visa application. Under the agent’s instruction, the visa holder submitted all of his family’s passports and paid the relevant service fees. The agent advised the visa holder that they would be in charge of all other documents for submission and not to worry about anything.
·The visa holder’s agent organised a meeting with an Australian solicitor and the visa holder was asked to sign a number of documents. The agent did not explain the documents contents nor did he give the visa holder any time to read them carefully. The visa holder could not understand the documents as most of them were written in English.
·The visa holder had no idea that the documents may have included a false document.
·Despite his limited English, the visa holder has never breached the law, has been obeying his visa conditions and paid his taxes on time.
·After consulting with many experts, the visa holder has learnt the migration policy has changed in recent years in that the Temporary Work (skilled) visa does now require IELTS.
The applicant also addressed the issue of the false documents in the hearing.
In the present matter, the Tribunal is satisfied (from the information cited above) that the delegate had reached the necessary state of mind to engage s.107 as the applicant clearly breached s.101 and s.103 of the Act and that, therefore, the Notice issued under s.107 has complied with the statutory requirements.
Relevant Legal Principles
In Gill v MIBP [2016] FCAFC 142 the Court held that the operation of section 98 of the Migration Act can be affected by the fraudulent conduct of a migration agent in circumstances where the visa applicant has not colluded in that fraud and there is no evidence to support a finding that the visa applicant was ‘indifferent’ as to whether the agent used unlawful or dishonest means to obtain a visa.
The Tribunal has relied for guidance in completing the review on the recent case of Katragadda v Minister for Immigration & Anor [2020] FCCA 723 (1 April 2020).
The Court in Katragadda said:
In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 the Full Court considered the type of conduct that constitutes “indifference”, as follows:
One of the points made by the Full Court in Gill at [49] is that there is a distinction between…an indifference as to how the migration agent acting lawfully and properly can achieve a visa applicant’s desired outcome, as opposed to an indifference as to whether or not that outcome is achieved by the agent acting unlawfully or dishonestly.
What is meant by indifference in this context approximates to what has been called “reckless indifference” at common law. That is because reckless indifference has been held to be sufficient in terms of a state of mind, to be treated along with intention, as transforming a false representation (for example) into a fraudulent one. [...] In their written submissions, the appellants referred to the following statement by Hayne JA (as his Honour then was) in Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Brooking and Tadgell JJA agreeing):
The expressions “reckless indifference” and “wilful blindness” are useful shorthand expressions to describe some kinds of cases of fraud. As the classical exposition by Lord Herschell in Derry v. Peek [1889] UKHL 1; (1889) 14 App. Cas. 337 at 374 shows, fraud can be proved by showing that a false statement has been made without belief in its truth or, “recklessly, careless whether it be true or false”. But as was said in the Assets Co. Ltd. case, the mere fact that a person might have found out fraud if further enquiries had been made does not of itself prove fraud. The enquiry is an enquiry for actual dishonesty not for want of due care.
When placed in its proper context, in the proof of fraud, it is apparent that the requisite state of mind for “reckless indifference” is close to intention. Or at the least, it is a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act. (Tribunal’s emphasis)
What these authorities make clear is that the reckless indifference (or wilful blindness) must be as to the truth of the representation, which is said to be deliberately false. The state of mind is thus found to be close to deliberate dishonesty. Once this is understood, the need for a careful finding, based on probative evidence, becomes apparent.
Other states of mind will not suffice. Helplessness, or a sense of helplessness, is not the same as reckless indifference. Fear of authority is not the same as reckless indifference. Nor is naivety. Nor is ignorance. Nor is want of due care: see SZFDE at [53], and Pyramid Building Society at 194. All of these states of mind need to be carefully distinguished.
Dependence or reliance is also not the same as reckless indifference. As the Full Court noted in Gill at [50]:
The applicant has insisted steadfastly that he has not colluded in any fraud and he was not complicit in the egregious work of others whom he employed to process his application. His representative’s submission addresses this conjecture. The Tribunal has investigated the applicant’s claims of ignorance when juxtaposed with his conduct and the sequence of events surrounding his application.
Firstly, the applicant admits (in his claims in mitigation) to ‘having a general idea about the requirements of the Temporary Work (skilled) visa’. As the applicant does not speak or read English this statement presupposes, he had informed himself of at least the minimum requirements for the visa. The Tribunal is satisfied that a person with such prior knowledge would be aware that to work in an Australian abattoir would require at least some competency in the English language in order to perform the tasks required by the Australian abattoir foremen. He had no knowledge of English at time of application he informs. Despite this the applicant further states that he was aware that skilled applicants were granted exemption from the English language tests.
Clearly by the words ‘skilled professionals were granted exemption from the English language tests’ he is not referring to the profession that he practices. He would well know that his own is a dangerous profession requiring strict supervision. His skill set requires the performance of dangerous butchery techniques. There are also high-level hygiene and OH&S standards which prevail in an Australian abattoir. It is readily apparent that without at least competent English he would not be able to comply with the rigorous expectations of an Australian meatworks in those areas. The fact that there is an English language requirement established by the Department for the visa he sought – is evidence of this finding. His claim to ‘having a general idea about the requirements of the Temporary Work (skilled) visa’ reinforces this finding in the view of the Tribunal.
The Tribunal does not, therefore, accept this explanation for his provision of false documentation. It is not satisfied that he would have thought he was just another skilled worker who did not have to meet the language requirements like many ‘in his hometown’. His comment further indicates that if he is an example of the type of person ‘in his hometown’ who has no English but is successfully able to navigate the grant of a Subclass 457 visa - which has an English language requirement - then visa fraud must have rampant ‘in his hometown’. The Tribunal notes that the fact that the Department began a long-term (4 years) investigation into his and probably other visa malfeasance gives weight to this conclusion.
The Tribunal further notes the claim he has made that:
The visa holder’s agent organised a meeting with an Australian solicitor and the visa holder was asked to sign a number of documents. The agent did not explain the documents contents nor did he give the visa holder any time to read them carefully. The visa holder could not understand the documents as most of them were written in English.
The Tribunal notes that the applicant has claimed he was provided with the opportunity to be fully briefed on his migration application. This was, he informs, provided by ‘an Australian solicitor’ as well as, presumably, his agent. Yet despite this revelation and his discomfort that he ‘could not understand the documents as most of them were written in English’ and the additional claim that his agent did not give him ‘any time to read them carefully’ - he went ahead relentlessly and signed them. The Tribunal finds that such an act indicates ‘reckless indifference’ and ‘wilful blindness’ on his part as an applicant for an Australian visa. On a matter of significant importance to him and his family he went and signed off the documents for submission to the Department without further thought or correct advice. This failure is accentuated by the fact that the documents of which he failed to inform himself of were fraudulent. His actions were wilful. The Tribunal does not, therefore, accept his particular explanation (in mitigation) for his provision of false documentation that he was some hapless victim of malfeasance by his China-based agent.
The applicant has claimed that he did what he did because the agent advised the visa holder that:
they would be in charge of all other documents for submission and not to worry about anything.
The Tribunal regards this statement as further evidence of the applicant’s deliberate and ‘reckless indifference’ in furnishing (fraudulent) documents to the Department. The applicant was preparing documentation (supposedly supervised by his agent and other parties) to facilitate his move to Australia. This was a momentous change in the fortunes of him and his family. He knew he did not speak English. He knew that all the required documentation was prepared in English by the Department. A minimum expectation on his part would be that he would have all the documentation read and explained to him in Chinese. He informs that an Australian solicitor was present which would have allowed for greater knowledge of the implications of the documentation. Yet with no further concern for the importance of this task he entrusted the submission of it to his agent. He allowed his reputation and future to be commandeered by an individual who subsequently (on his behalf) submitted a trove of documentation to the Department which after significant investigation has been proved to be totally fraudulent.
The applicant makes the further claim that:
‘the visa holder had no idea that the documents may have included a false document’
The Tribunal rejects this claim in mitigation of his ignorance of the illegal documents. The Tribunal finds that applicant’s ‘wilful blindness’ in signing off his documentation led inexorably to the submission of false documents on the applicant’s behalf. His claim of ignorance defies belief when juxtaposed with the conduct of the agent which he himself has outlined in his submission. The Tribunal gives no weight to his claims that ‘he had no idea’ when they are juxtaposed with the sequence of events he describes at the collation and signing of the documents for submission to the Department. Presumably if he had been steadfast in having the documents read to him, he would have been aware of the falseness of the them. Instead he chose not to, and thus became party to their dissemination.
The Tribunal finds that the applicant had reached:
‘a state of mind where the indifference or wilful blindness to the truth of what is being said or done is at such a level that a court considers it appropriate to fix a person or conduct with the same consequences as those fixed for an intentionally fraudulent act’.
The Tribunal has turned its mind to the significance of the applicant’s conduct in the context of the provision of incorrect information and a bogus document to the Department established by the Tribunal. The Tribunal is satisfied, on balance, that the applicant’s conduct is significant enough to support a finding that the applicant was ‘indifferent’ to the submission of a bogus document and incorrect information as outlined by the Department in the NOICC.
The Tribunal finds (from reliable information) that the applicant has not complied with s.101(b) of the Act. In support of his application (and in order to satisfy the legislative requirements for the grant of a visa) the applicant provided incorrect information in response to the following questions:
“Has the applicant undertaken an English Language test within the last 36 months?”
and subsequently:
“Give details of the most recent English test”
information which is found on page 10 of ‘Long-Stay Temporary Business Visa’.
The applicant - as can be seen and he has confirmed - never undertook an IELTS test.
The Tribunal considers that the applicant has also failed to comply with Section 103 of the Act. This is because (in support of his application and in order to satisfy the legislative requirement for the grant of a visa) he submitted an IELTS test certificate which was, in fact, ‘a bogus document’ because in the words of s.5 of the Act it “is counterfeit or has been altered by a person who does not have authority to do so”.
The applicant - as can be seen and he has confirmed - never undertook an IELTS test.
For these reasons, the Tribunal finds that there was non-compliance by the applicant with both s.101 and s.103 of the Act in the way described in the s.107 notice ie submitted an IELTS test certificate which is counterfeit or has been altered by a person who does not have authority to do so
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.
· the correct information
The correct information is that the applicant has admitted that he did not sit an IELTS test on 22 August 2014. Therefore, for all intents and purposes his English language ability has not been properly assessed.
· the content of the genuine document (if any)
In response to the NOICC, the applicant admitted that he did not sit an IELTS test and as a result it appears that he is not at the required English standard. Therefore, in support of his application and in order to satisfy the legislative requirement for the grant of a visa the applicant submitted (or had submitted on his behalf) an IELTS test which “is counterfeit or has been altered by a person who does not have authority to do so”. It can be deduced from this that there is no genuine document to consider. The applicant has confirmed this in his response to the Department and Tribunal.
The Tribunal gives this consideration neutral weight when considering cancellation.
· 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 decision to grant the visa holder’s Temporary Work (Skilled) visa was partly because he had (claimed) he had sat an IELTS test in the previous 36 months. He has subsequently denied he sat any test.
By not sitting the IELTS test on 22 August 2014, the applicant provided incorrect information on the form ‘Long-Stay Temporary Business Visa’. He effectively submitted a document (the IELTS test certificate) that “is counterfeit or has been altered by a person who does not have authority to do so” in order to satisfy the legislative requirements for the grant of a visa.
At time of application for a Temporary Work (Skilled) visa the applicant was required to meet Migration Regulation 457.223(eb) which states:
If:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument (IMMI14/009), in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec) if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister;
The Tribunal is satisfied that, if the delegate had been aware of the correct information at time of decision (namely that the applicant did not perform the test and the results presented were bogus), it would have been most unlikely that the applicant would have been granted a Temporary Work (Skilled) visa as this information was material to the grant.
The Tribunal gives this consideration significant weight in favour of cancellation.
· the circumstances in which the non-compliance occurred
The applicant lodged an application for a Subclass 457 visa - via the Department’s online lodgement facility - on 4 November 2014. In conjunction with this application he provided incorrect answers to questions and the IELTS results provided were bogus.
In his response to the NOICC and Tribunal, the applicant stated that he had no idea that the documents submitted by his agent with his application included a false document. As was pointed out to the applicant in the hearing, although he claims to have been an unwilling participant in this deception, s.98 of the Migration Act states that ‘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’. According to Gill, an applicant is responsible if the answer was given on the applicant’s behalf but might not be responsible if not complicit in or indifferent to the fraud. The applicant has been adamant that he was not complicit and was ignorant of the incorrect information. He has claimed to be a law-abiding person at all times.

The Tribunal, in the light of its earlier finding on the implication of Gill in the particular case of the applicant, gives this consideration significant weight in favour of cancelling the visa.
· the present circumstances of the visa holder
The Tribunal has considered the applicant’s present circumstances. He and his family have resided with him in Australia for over 5 years. The applicant informed (in the hearing) that he and his wife are not working. His daughters Lingjing, aged 7 years, and Lingjie, aged 19 years are both studying at primary school and university, respectively.
The Tribunal accepts that visa cancellation may cause an immediate degree of disruption and thus hardship on the youngest daughter Lingjing, - through relocation. She would necessarily have to change schooling systems. Saying that the family can safely relocate to China and re-establish their life in their homeland. The applicant has outlined in oral evidence the present unsatisfactory financial situation of the parties. He claimed that they are both living on personal savings and the charity of friends. The Tribunal is of the view that a return to China, therefore, would remove that immediate hardship on their lives.
The Tribunal is aware that the parties’ daughter, Lingjie, has (subsequently) withdrawn from this review and been granted a Student visa in Western Australia where she continues with her nursing studies. The issue of her separation from the family is thus less of an issue than when they lived together in Western Australia.
A further important circumstance that must be weighed up is the fact is the majority of the family were on Temporary visas and are now on Bridging visas pending the outcome of this review. The parties have suggested that they prefer for the children to grow up in Australia. However, their further stay is unrealistic in view of their Temporary status.
The Tribunal gives this consideration some favourable weight against cancellation.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal gives this consideration some weight against cancellation considering the applicant readily admitted to the non-compliance in his response to the NOICC. He claimed that he was not aware of the English language requirement and admitted that he did not sit any IELTS test.
· any other instances of non-compliance by the visa holder known to the Minister
There are no other instances of non-compliance by the applicant of which the Tribunal is aware. The Tribunal gives this consideration some favourable weight against cancellation.
· the time that has elapsed since the non-compliance
The non-compliance occurred on 22 August 2014. Five years and six months have elapsed since the non-compliance and, therefore, the Tribunal gives this consideration some favourable weight against cancellation.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no adverse information before the Tribunal regarding this consideration. The Tribunal gives this consideration some favourable weight against cancellation.
· any contribution made by the holder to the community.
The applicant informed in oral evidence that he pays taxes. The Tribunal is satisfied that this is a normal obligation of a lawful non-citizen. The Tribunal gives this consideration neutral favourable weight against cancellation.
The Tribunal’s assessment of the applicant’s responses includes the following other matters:
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa were cancelled, he would become an unlawful non-citizen and liable to be detained under section 189 of the Act and removed from Australia - if he didn’t arrange his own departure or make a further visa application. The applicant would be eligible to make a further visa application in certain limited categories, the success of which would depend upon him meeting the relevant criteria. Cancellation in this case will result in the applicant being subject to Public Interest Criterion 4013 which may mean a three-year exclusion period being imposed on him. The Tribunal considers these legal consequences would not be unreasonable as they are administrative sanctions resulting from non-compliance.
The Tribunal is aware that the applicant and his family members are Chinese citizens and they all hold Chinese passports. Therefore, they are able to return to China at any time if their visas are cancelled.
·whether there would be consequential cancellations under s.140
The applicant had 3 dependents (initially) being Huiping LIN, Lingjie YOU and Lingjing YOU, the applicant’s wife and two daughters, who were also granted Subclass 457 visas because of the applicant’s visa. The second named applicant (Lingjie YOU) has withdrawn from the Tribunal review as evidence before the Tribunal indicates she had been separately granted a Student visa to study nursing. Therefore, in the event of cancellation, the applicant’s remaining dependents’ visas would be cancelled consequentially.
·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.
The Tribunal has considered the applicant’s family situation and whether cancellation of the applicant’s visa would be in breach of the Convention on the Rights of the Child (CRC).
In this case, a primary consideration must be the best interest of the visa holder’s child Lingjing YOU. Lingjing is 8 years old and is attending second year of primary school in Sydney. Lingjing is a Chinese citizen and first arrived in Australia when she was four years old.
The Tribunal is satisfied that Lingjing would easily re-locate with her parents in the event of visa cancellation. Considering her young age and growing up in a Chinese-speaking household, the Tribunal does not envisage that Lingjing would have many issues re-adjusting to life in China apart from some initial disruption through changing from one school culture to another and making new schoolfriends. She would be able continue her primary schooling in China where she speaks the language. She would reside with her parents and be part of their family unit. The Tribunal is satisfied from the above reasons that the impact of cancellation on the applicant’s daughter would be in the best interests of his child as she would be saved from further disruption and uncertainty in her life.
The Tribunal is satisfied that there would be no breach of the Convention on the Rights of the Child (CRC) by a decision to affirm the cancellation.
·any other relevant matters, including the degree of hardship that may be caused to the applicant and any family members.
The applicant and his wife and younger daughter have claimed they would suffer a degree of hardship because after many years in Australia he would have to relocate to his homeland with his wife and younger child. He would have to seek employment anew and begin life all over again in China. Nevertheless, he is a Chinese national with all the rights that accrue to a Chinese citizen. He has claimed that he has not been working in Australia and has survived on his savings and loans from friends in order to make ends meet. This latter factor could impact his relocation and make for potential financial hardship on return to China. However, his continuing impecunious financial situation in Australia is a product of his decision to not return to China and to seek review of the cancellation decision before the Tribunal. Furthermore, he has expressed the desire to remain in Australia despite his predicament and Temporary visa status.
The Tribunal noted further that the applicant’s employment in Australia, initially, was due to the submission of a bogus IELTS certificate and the provision of incorrect information sourced from that bogus certificate. Without that certificate the applicant would never have been granted a visa to work in Australia as it was a condition precedent for the grant of the Subclass 457 visa. Despite the fact the applicant has been able to work in his profession in Australia - it has (all the while) been based on the submission of incorrect information regarding his English language ability and a bogus IELTS certificate. There is no possibility of the applicant being granted a new visa.
Therefore, the Tribunal finds that any significant financial hardship induced by relocation to China would be a product of the applicant’s decision to enter Australia under these circumstances. Furthermore, any financial hardship he could potentially suffer has been exacerbated by his own actions in seeking to remain in Australia.
Thus, the Tribunal gives financial hardship little weight in favour of not cancelling the applicants’ visas.
The Tribunal observes that the applicant and his family have also chosen to live in Sydney and no longer in Western Australia (where their elder daughter resides as a student). Thus, there is presently no close geographic proximity with their elder daughter. This normally would create some emotional hardship in a close-knit family but in the instant case it was a decision reached by the applicant and his family. Therefore, the Tribunal finds that any significant separation hardship from their elder daughter has been created by the actions of the applicant family.
The Tribunal gives this emotional hardship consideration no weight in favour of not cancelling the applicants’ visas.
The Tribunal has considered the various issues in the case cumulatively and individually. There is the applicant’s claim that he was not party to immigration fraud or misinformation and that he was all the while an innocent who was duped by his rogue agent. Yet the immigration fraud was discovered by the Department nearly 4 years later after investigation. The Tribunal is not satisfied that his claim holds weight. There is his claim that he and his family wish to remain in Australia for their future. Yet as the Departmental investigation has shown he does not meet the criterion for the visa (procured by fraud) and his visa was always a Temporary one.
Despite the applicant’s previous claims to the delegate of personal innocence, hardship and a general wish to remain in Australia permanently - the Tribunal gives little weight to these claims as a basis for not cancelling the primary applicant’s visa. The applicant’s arrival in Australia, plainly, was based on proven fraud and misinformation. The Tribunal gives significant weight to the importance of maintaining the integrity of the Australian migration program. Moreover, the applicant’s mitigating claims for not affirming the decision do not outweigh the reasons in favour of cancellation.
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 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michael Cooke
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 2590

14 May 2020

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Immigration

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