YU (Migration) - [2020] AATA 5785

YU (Migration) [2020] AATA 5785 (23 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Renping YU
CASE NUMBER:  1921643
DIBP REFERENCE(S):  BCC2019/2234037
MEMBER:Antoinette Younes
DATE:23 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statemen made on 23 October 2020 at 10:43am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –bogus documents – Graduation Certificate and ID card couldn’t be verified – applicant has not completed any courses– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 103, 107,109, 359
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.103 of the Act, in that he provided bogus documents as defined in s.5(1) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 30 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant was represented in relation to the review by his 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
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading YU (Migration)

Details

AGLC: YU (Migration) [2020] AATA 5785
Case: [2020] AATA 5785
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the visa of the applicant, YU. The dispute centred on whether the applicant had provided bogus documents in support of his Student visa application, thereby breaching section 103 of the Migration Act 1958 (Cth). The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the applicant had indeed failed to comply with section 103 by providing bogus documents.

The Tribunal's reasoning focused on the definition of a "bogus document" under section 5(1) of the Act, which includes documents reasonably suspected of being obtained due to a false or misleading statement. The Tribunal found that the applicant had provided a Family Household Register purportedly issued by Kaiyun Police Station, but investigations revealed no officer named Chen Liguo worked there. Furthermore, a separate Family Household Register provided by another individual claiming to be the applicant's mother, which listed different parental names and a different national identification number for the applicant, was confirmed as accurate by Fuqing Yinxi Police Station. The applicant's provided graduation certificate from Xiamen University also could not be verified.

Based on this evidence, the Tribunal was satisfied that the notice issued under section 107 was valid and that the applicant had provided bogus documents, constituting non-compliance with section 103. Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.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 s.103 in that the applicant had provided bogus documents as defined in s.5(1) 0f the Act. Section 103 of the Act provides that:Bogus documents not to be given 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 Section 5(1) defines a bogus document as follows: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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. Relevantly, the decision record indicates that:1) On 19 July 2018, the applicant lodged an online application for a Student – Vocational (subclass 500) visa. As part of the application, the applicant provided information relating to his parents. He indicated that his father is Zhonghua YU (date of birth 23 February 1966) and that his mother is Qingyu LIN (date of birth 15 October 1967). Under the heading Declarations, he confirmed that he had provided complete and correct information.2) In support of the application, the applicant provided a Family Household Register (FHR) dated 18 July 2017 which was completed by Chen Liguo, a police officer, referring to the applicant’s parents as Zhonghua YU and Qingyu LIN. The applicant provided a Graduation Certificate from Xiamen University dated 30 June 2012 indicating that the applicant had passed all courses of a three-year diploma study. He also provided a National Identification Card number 350203198907019313.3) The visa was granted on 31 July 2018 and the applicant entered Australia for the first time on 9 August 2018.4) On 29 March 2019, Huayun LIN (date of birth 7 November 1968) lodged an application for a Visitor visa claiming to be the applicant’s mother. As part of her application, she provided an FHR issued by Fuqing Yinxi Police Station showing her spouse as Huaming Yu and the applicant as their child who holds a National Identification Card number different to the one provided by the applicant. According to the Australian Department of Foreign Affairs (DFAT), the National Identification Card number is unique and remains the same even if a new card is issued.5) The Department contacted Kaiyun Police Station in Xiamen to check the information contained the FHR provided by the applicant in support of the student visa application. The police confirmed that there was no officer called Chen Liguo at Kaiyun Police Station. Fuqing Yinxi Police Station confirmed that the content in the FHR provided by Huayin LIN is correct and consistent with the record held by the authorities. Further Departmental checks revealed that the Graduation Certificate from Xiamen University dated 30 June 2012 could not be verified.Notice of Intention to Consider Cancellation (NOITCC)

Decision

Reasons for decision

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 applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior MemberATTACHMENT – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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.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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

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