2113572 (Migration) - [2022] AATA 2657

2113572 (Migration) [2022] AATA 2657 (10 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Miss Di Sun
CASE NUMBER: 2113572

MEMBER:Alan McMurran
DATE:10 February 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 10 February 2022 at 2:58pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – incorrect answers in visa applications – bogus documents – member of the family unit – genuine and ongoing relationship – unauthorised altered addresses on correspondence – sponsor owned commercial property at the same address – financial hardship – best interests of the Australian citizen children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 97-105, 107-109, 140
Migration Regulations 1994, r 2.41
CASES
Brown v MIBP [2015] FCAFC 141
CFE16 v MIBP [2020] FCCA 1083
Hopkins v MIAC [2007] FCA 1108
MIAC v Khadgi (2010) 190 FCR 248
MIMA v W157/00A (2002) 203 ALR 5
Nweke v MIAC [2012] FCA 266
Wan v MIMA (2001) 107 FCR 133
Wan v MIMA [2001] FCAFC 568
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 5 October 2021 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the Peoples’ Republic of China. On 19 October 2017 the applicant had applied for a Subclass 186 permanent residency visa (“the visa”) as a secondary applicant and member of the family unit of the primary applicant. The visa was granted on 19 March 2018.
On 29 September 2021 the delegate cancelled the visa on the basis that the delegate did not accept that the applicant had been living in a genuine de facto relationship with the primary applicant. The delegate found the applicant had provided a false address as the place of residence during the relationship, and bogus documents to the Department in the form of altered bank statements. The delegate found the applicant was motivated to demonstrate her relationship with the de facto in order to obtain the visa.
On 8 February 2021 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The hearing was conducted virtually using MS Teams and in accordance with the Tribunal’s COVID-19 Practice Direction for providing a mechanism of review that is fair, just, economical, informal, and quick. The applicant indicated she was willing to proceed, having provided all relevant information. The applicant was represented in relation to the review by her solicitor.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
The Tribunal has had regard to the information in the Department’s file, together with the additional information and submissions made to the Tribunal. The Tribunal has also had regard to the oral evidence from questioning the applicant, Department Policy (PAM 3) and the Act and Regulations.
The review involves several steps. Firstly, consideration of the issue of compliance with s.107 and validity of the notice; secondly, whether there was non-compliance as described in the notice; and thirdly, if there was non-compliance, whether the visa should be cancelled. The third step involves the exercise of discretion, it not being mandatory to cancel the visa even where the Tribunal is satisfied that there was non-compliance.
Is the Notice compliant with s.107?
S.107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one or other of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. Relevantly in the present case, s.107(1) requires the Minister to consider whether the visa holder has complied with s.101[1] and s.103 [2].
[1] no incorrect answers are given or provided;
[2] 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 the Act, a bogus document or cause such a document to be so given, presented, produced, or provided
On 28 July 2021, the Department issued a Notice of Intention to Consider Cancellation (“NOICC”) under s.107, also referred to in these reasons simply as the ‘notice’.
The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The NOICC provided particulars of non-compliance with s.101(b) (incorrect answers) and s.103 (altered bank statements showing a different residential address).
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the NOICC complied with the statutory requirements and was compliant with the notification requirements.
Was there non-compliance as described in the s 107 notice?
The second issue before the Tribunal is whether there was non-compliance in the way described in the NOICC, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The cancellation decision refers to the visa application which asserts that the applicant was the de facto partner and member of the family unit of the primary visa applicant. The applicant told the Department, confirmed in her evidence before the Tribunal, that she met the primary applicant in about April 2015 at a party, and they commenced living together at a residential address at [Suburb 1] on 20 August 2015.
The applicants completed a declaration with the visa application that they had read and understood the information and that the information was complete and correct in every detail. The applicant included a number of documents as evidence of her relationship with her then de facto, [Partner A]. These included:
a.her bank statement from [Bank 1] in the applicant’s name addressed to the [Suburb 1] address;
b.a relationship statement called ‘Love story’
Other documents (not before the Tribunal) which the applicant provided were utility bills and photographs, requested in a ‘checklist’ provided by [Partner A’s] migration agent in order to support the claimed de facto relationship.
The non-compliance identified and particularised in the NOICC was non-compliance with s.101 and s.103 in the following respects:
Incorrect information – s.101
a.provided details of a claimed de facto relationship which commenced on 20 August 2015; and
b.declared the information was correct and up to date, where forensic examination revealed copies of bank statements provided to support the relationship were intentionally altered.
Bogus documents – s.103
c.six [Bank 2] statements from the defacto partner had an address on those statements which was altered; and
d.one [Bank 1] statement from the applicant had an address which had also been altered.
For reasons not known to the Tribunal, following the grant of the visa, a forensic examination of the above documents was requested by the Department and established that the residential addresses shown on the applicant’s [Bank 1] statement did not match the residential address officially linked and registered to the document. The examination further revealed that the [Bank 2] statements provided by the primary applicant had also been altered as the residential address was not the address recorded against those documents. The delegate concluded therefore that the bank statements were bogus documents.
The applicant responded to the NOICC and provided a Statutory Declaration made 9 August 2021. The applicant sets out the history of her time since arriving in Australia as a student. She provided details of her relationship with the primary applicant and a joint decision to commence living together in August 2015. The applicant gave the residential address during the relationship as the [Suburb 1] address which had been provided in the application. The declaration states that a migration agent engaged by the primary applicant had completed the documents and lodgment of the application. It further states that the applicant had provided all her documents to the migration agent including a [Bank 1] statement in joint names. The applicant declared she was unaware of any alteration of that document which she did not authorise. On receipt of the NOICC, the applicant accepted that the document had been altered fraudulently by the migration agent. The applicant declared however, that she was unaware why this was necessary, as the address on the document was the residential address at [Suburb 1] during the relationship with the primary applicant and the address on the document did not need to be altered.
The applicant’s Statutory Declaration further explained that the primary applicant used his sister’s address on his documents, as the [Suburb 1] address was “temporary”, being a rental property. The applicant asserted the genuineness of the relationship and could offer no other explanation why it was felt necessary by the agent to alter the address on the bank documents. The applicant’s statement gave further details about the ending of the relationship and her current circumstances as of August 2021.
The applicant’s evidence at the hearing and further submissions to the Tribunal from witnesses who have attested to the relationship in writing confirms that the applicant and the primary applicant were living together in a de facto relationship. The evidence about alteration of the documents is provided by the Department. That evidence is not challenged by the applicant. The applicant is unable to explain however why the documents were altered without her knowledge or authority. The applicant’s evidence is that the address of the residential property during the relationship and where she lived with the de facto partner at [Suburb 1] was the address on the documents which the forensic examination revealed had been altered. No satisfactory explanation has been provided why the address on those documents either was altered or needed to be altered.
In the absence of any contrary evidence that the documents were not altered, and where evidence of the documents having been altered is accepted by the applicant, the Tribunal finds that the bank statements were altered by a person without the applicant’s authority and that they constitute bogus documents.
The Tribunal finds that the [Bank 1] record and the [Bank 2] records are bogus documents within the meaning of s.5(b) of the Act because they had been altered by a person with no authority to do so. [3]
[3] s.5: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:….
The Tribunal concludes that the applicant gave, presented, or provided to an officer or the Minister, bogus documents, or caused such documents to be so given, presented, or provided. The Tribunal finds that there was non-compliance with s. 103 of the Act in the way described in the NOICC.
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 reg 2.41 of the Regulations. Briefly, they are:
The correct information
The residential address where the applicant lived with the primary applicant during the period of their relationship was a unit at [Address 1 in] [Suburb 1]. The relationship was a genuine de facto relationship for the period from 20 August 2015 until late July 2018.
The content of the genuine document (if any)
The unaltered address on the bank statements would not show the [Suburb 1] residential address at [Address 1 in] [Suburb 1]. This would give rise to an inference from the bank statements that the parties were not in a genuine de facto relationship.
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 applicant made the application as a secondary applicant. There is nothing before the Tribunal to suggest that the applicant relied on meeting the primary criteria for the permanent residency visa grant for the employer nomination scheme under the regulation for visa Subclass186. That is, the applicant’s relationship with the primary visa applicant was central to her eligibility for the visa.
If it was known to the decision-maker that the applicant was not a partner or de facto partner of the primary visa applicant (and there is nothing to indicate that the applicant met the alternative criteria of the definition of ‘member of the family unit’), it is unlikely that the applicant would have been granted the visa. The Tribunal is satisfied that the decision to grant the visa was based on the incorrect information being the claimed de facto relationship with the primary visa applicant and the bogus documents (7 bank statements) evidencing that relationship.
The circumstances in which the non-compliance occurred
The applicant has outlined her version of the events as they occurred, which she confirmed at the hearing. The facts as found by the Department following its forensic examination have been set out above.
The applicant’s explanation is that she only provided genuine documents and information to the representative. She said she provided what was requested by the representative in a “checklist”. She asserts the relationship was genuine and continued for several years. The evidence of the independent witness statements confirms the relationship was genuine, based on the casual observations of the 3 witnesses who knew the de facto couple socially.
The applicant explained that the residential address at [Suburb 1] comprised 2 units above 4 commercial properties. One of those commercial properties is occupied by the applicant’s company as tenant operating a retail [business 1] outlet. The applicant explained that the [business 1] was purchased by her parents in 2010 for $450,000. The applicant has been working in that business since 2010, and which she now manages on her own account. That business has as its address, the same [Suburb 1] street address as the residential property occupied by herself and the de facto. The unit where they lived (unit 1) was above the shop (unit 3). She said the address was not clearly marked or identified for receipt of post. She said both herself and the de facto used addresses on the bank documents which had been provided prior to the relationship, and which for convenience, were continued, as the residential address was “confusing” and difficult to find. The applicant thought the agent may have changed the earlier addresses on the bank statements to reflect the residential address and to support the claimed relationship.
The applicant said this was unnecessary as there was sufficient evidence of their genuine relationship without any need to change the address on the bank statements, which she had not authorised. She does not know when or how or why this occurred, other than through the actions of the representative and as explained above.
Following the hearing, the applicant provided a copy of a bank statement of a joint [account] with the [Bank 1] for the period December 2018 to January 2019, which post-dates the de facto relationship. The address on that bank statement names the applicant and the de facto partner (primary applicant on the visa application) as joint owners of the account and gives the residential address at [Address 1 in] [Suburb 1]. If this record is accurate, and it has not been forensically tested, it shows the bank record actually recorded by the bank is the correct residential address for both parties for that account. It leaves however unexplained why the agent felt it necessary to alter the [Bank 1] statement provided to the Department, and where the alteration was asserted to be the address.
The evidence about the alteration of the bank statements is unsatisfactory. It is unclear following the hearing and the applicant’s evidence why it was felt necessary to alter an address which at least on one document, appears to be the correct address. No evidence has been provided by the former de facto partner who is now in China. The Tribunal accepts the evidence that there was in fact an enduring relationship over a three-year period from 2015 to 2018. The applicant has given candid evidence in support of the relationship, both to the Department with the ’Love story’ description in 2017, and in the statutory declaration provided in answer to the NOICC. Following the Tribunal’s examination at hearing, the applicant has given consistent descriptions of the relationship, the breakdown, and what occurred for the filing of the application. The applicant accepts responsibility for what the agent did, even though she cannot explain why it was done and that it was without her authority. She sincerely regrets that circumstance and can offer no explanation for the asserted fraud.
The Tribunal finds it accepts the applicant’s evidence as to those circumstances and gives significant weight to this finding.
The present circumstances of the visa holder
In her statement in August 2021, the applicant sets out her circumstances following the ending of the de facto relationship. She met her husband in about September 2018, and whom she married in February 2019. She said everything in her statement is correct.
The applicant has one child born [on date] and is currently pregnant with her second child due in [2022]. The applicant has described significant medical issues arising following the birth of the child. Those issues were exacerbated by the absence of her husband in China, and the applicant attempting to run the [business 1] during the pandemic. The applicant said that their current finances are stretched and that she is unable to repay monies she has borrowed to continue the business. The applicant has recently sold their investment property at [Suburb 2] in order to repay debt including the mortgage ($650,000) which they were unable to service. The applicant explained that following the sale, they will have equity of approximately $135,000 after discharging the mortgage, and which will not be sufficient to repay the applicant’s parents ($450,000) for purchase of the [business 1], or other debts accrued from loans from friends and relatives totalling almost $90,000. The applicant says she currently works 6 days per week in the [business 1] without a salary, due to the severe drop in revenue during the pandemic.

The applicant’s husband (referred to as “[name]”), returned from China in October 2020 on a visitor visa to reunite with his family. He is now the subject of a partnership visa application[4], lodged while he was offshore, and sponsored by the applicant and which is on hold pending the cancellation decision. The applicant had previously made a citizenship application on 18 April 2019, which she has now withdrawn.
[4] Subclass 309 provisional partner visa lodged on or about July 2019
The applicant has also submitted current medical evidence from New South Wales Health. Evidence has been provided by the [hospital Registrar] which in summary, states the applicant “is an undeniable high risk of deterioration of her mental health which may pose direct irreversible harm to herself and her unborn baby”. This is supported by a further statement from the [Social Worker] from the [named] Local Health District, responsible for treating the applicant’s mental health condition. The clinical diagnosis is “high rate of mental depression” and possible self-harm. The applicant has been referred to a psychiatrist for assessment and commenced on medication for “suicidal ideation”. The conditions are said to relate to the applicant’s current financial problems, concerns over the impending second birth, and the visa cancellation.
The applicant’s evidence at the hearing is that her husband has sold all his assets in China and intends to remain permanently in Australia to support the family. She stated that his support has been significant to her continued survival in Australia. The applicant says she has been in Australia for over 11 years and would struggle to survive in China. If returned, she would be forced to sell her [business 1] which she says has lost significant value due to the fall in revenue during the pandemic. She says she would not be able to repay her parents. She says that her child is an Australian citizen and would not be eligible for government or support services in China, including State education. She said they would not be able to afford private education for the child in China. She said her parents are elderly and have no remaining assets and would not be able to provide further financial support.
The Tribunal accepts that if the cancellation of the visa will result in the applicant’s loss of employment, this is likely to affect the couple’s financial situation and may cause some hardship to them. The applicant has provided evidence of having formed strong social ties in Australia and she provided several statements from third parties. The Tribunal accepts that the applicant has considerable social ties in Australia. The applicant has referred to her community contribution in 2019 for an event which she organised and which the Tribunal accepts.
The Tribunal accepts the applicant’s evidence of her current circumstances set out above and places some weight on this finding.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There is no other information before the Tribunal of any non-compliance by the visa holder known to the Minister, other than the matters set out in the NOICC. The applicant concedes the bogus documentation. The applicant however maintains her position the address information altered in the documentation was not authorised or known to her until receipt of the NOICC more than 4 years after the event, and after her former partner had departed for China.
The Tribunal has found the applicant nonetheless declared information to be correct at the time (2017) and has found the declaration was not and that the applicant did not comply with s.101 and s.103.
The Tribunal finds there are no other instances of non-compliance in the form of incorrect answers or bogus documentation.
The time that has elapsed since the non-compliance
The visa application and documentation was lodged on 19 October 2017, and more than 4 years has elapsed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law and there is nothing before the Tribunal to indicate that the applicant has been convicted of any offence.
Any contribution made by the holder to the community.
The applicant refers to her contribution through employment and participation in the community event she organised in 2019. The applicant refers to a further business she operates as a [business 2] operator authorised by the [sate agency], and which commenced in 2017. She said this agreement with the State Government was renewed in 2019 and has resulted in a number of international [clients]. She said subject to the pandemic, she intends to continue this [business], which will benefit the Australian economy through [specified clients].
The applicant has not provided to the Tribunal evidence of any other contributions such as charitable and social activities and donations. The Tribunal accepts the applicant has made a contribution to the community.
Other factors?
While the above factors in the Regulations 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 would be consequential cancellations under s 140?
There are no persons whose visas would be subject to consequential cancellation. The Tribunal has mentioned the fact the applicant’s husband has a pending application for a Subclass 309 provisional partner visa lodged on or about July 2019. That application will be unable to proceed without the applicant’s sponsorship.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
The Tribunal is mindful that the Federal Court has said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia.[5] Clearly in this case , the child’s best interests at such a young age are to remain close to the parents.
[5] Wan v MIMA (2001) 107 FCR 133, at [27]-[28].
The Tribunal heard from the applicant that if the visa were cancelled, her child (or children) might remain in Australia and without parental support. The Tribunal does not accept that submission, given that the applicant’s evidence is that there is no family support in Australia and no likelihood of the children being cared for other than by the applicant and her husband. The position is that if the visa were cancelled, the family would return as a unit to China, to face whatever difficulties and struggles that might entail, including raising the children.
It is well-established that the best interests of a child or children are to be treated as a primary consideration.[6] Provided any other consideration is not treated as being inherently more significant than the best interests of the child, a decision maker is entitled to conclude, after a proper consideration of the evidence and other material before them, that the strength of other considerations outweighs the best interests of the child.[7] So, for example, the Tribunal might conclude that the best interests of the child require a visa not to be cancelled, but that the damage to the child’s interests that would flow from cancellation would be of only slight or moderate significance.[8]
[6] See Wan v MIMA [2001] FCAFC 568 at [32], Nweke v MIAC [2012] FCA 266 at [18]–[21], MIMA v W157/00A (2002) 203 ALR 5 at [77], and Hopkins v MIAC [2007] FCA 1108 at [34], [37]. Note that these judgments concern cancellation under s 501 and rely, following MIMA v Teoh (1994) 183 CLR 273, on the legitimate expectation of visa holders to have the best interests of their children treated as a primary consideration, a principle of common law procedural fairness. Accordingly, they do not provide direct authority for the Tribunal’s review of s 109 decisions. However, they do provide useful practical guidance on how to ensure a child’s best interest are in fact treated as a primary consideration when that obligation arises.
[7] Wan v MIMA (2001) 107 FCR 133 at [32].
[8] Wan v MIMA (2001) 107 FCR 133 at [33].
The UN Convention on the Rights of the Child 1989 ensures that the best interests of the child is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[9] The visas of Australian-born children will be automatically cancelled where they hold the visa because their parent held a visa, and that was cancelled.[10]
[9] CFE16 v MIBP [2020] FCCA 1083 at [25], Brown v MIBP [2015] FCAFC 141 at [28].
[10] s 140(3)
There is no evidence in this case that the child or children would not remain close to the parents or would be left in Australia unattended, as suggested by the applicant. The Tribunal places primary weight on this consideration as being in the child’s best interests and has rejected the suggestion that the child or children would remain in Australia without the parents.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations?
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant’s partner is in Australia, her parents are in China. The Tribunal does not consider that the principles of the family unity would be breached as a result of the cancellation, given the applicant’s eligibility to seek other Australian visas in the future.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening?
If the applicant’s visa is cancelled, and if she is not granted another visa, the applicant may become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion that the applicant would face indefinite detention. The applicant will be able to apply for other visas onshore without Ministerial intervention but there are limited types of visas she may validly apply for onshore. If the applicant was to make an application for a visa offshore, she may be subject to an exclusion period in relation to some types of visas.
If the visa is cancelled, the applicant would lose some of the entitlements she had otherwise acquired as a permanent resident of Australia, including the ability to sponsor her parents for the visas.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
In her response to the NOICC and evidence to the Tribunal the applicant refers to the hardship she would experience if she was required to leave Australia and return to China. The applicant refers to having limited contacts and relationships in China. She claims she may not be able to find appropriate employment in China and would find it difficult to re-establish herself. The Tribunal accepts that, given the length of the applicant’s stay in Australia and her connections to this country, the applicant’s return to China may cause her and her family considerable hardship. The Tribunal places a little weight on this consideration.
The Tribunal has also taken into account the serious delay between the conduct giving rise to the cancellation in 2017 and the Department’s advice concerning its forensic examination in 2021. There is no doubt such delay has exacerbated the applicant’s personal and financial circumstances, in part due to the pandemic, but also due to the applicant’s re-partnering and subsequent marriage, the birth of her child and further pregnancy during this period. The Tribunal is satisfied on the evidence that the applicant’s present state of physical and mental health is attributable primarily to the birth of her first child and diagnosis of postnatal depression, which occurred prior to the cancellation decision, and which may have been exacerbated following that decision. The Tribunal finds it is a matter which merits consideration and gives this consideration some weight.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.103 and that there are grounds for cancelling her visa. The Tribunal has also found that there was another instance of non-compliance as the applicant had completed her application form in a way that incorrect answers were given or provided, in breach of s.101 of the Act.
Generally, the Tribunal accepts that there are factors that weigh against the cancellation. The Tribunal has formed the view that the cancellation of the visa would not lead to a breach of Australia’s international obligations and would not adversely affect the best interests of any children.
In the circumstances of this case, the Tribunal has decided to place less weight on the circumstances in which the non-compliance occurred than other factors. This is because the Tribunal is satisfied and has accepted on the evidence that the applicant was not complicit in the non-compliance, and herself provided the correct information, which was fraudulently altered without her knowledge or consent by the primary applicant, and but for that, entitled the applicant to the visa where she had otherwise met the relevant criteria.
The Tribunal finds that the applicant has worked conscientiously in her business and supported the Australian community through her [business 2], unaware until the NOICC of any non-compliance on her part. The applicant has serious health conditions including diagnosed suicidal ideation. The applicant and her children will be seriously impacted by the cancellation. The applicant has a lengthy history in Australia with no evidence of any other non-compliance issues, and the Tribunal has found that the applicant was not complicit in any fraud or contravention of the Act. The applicant has candidly accepted her responsibility and expressed her dismay and remorse.
The Tribunal has decided that such circumstances should be given greater weight and outweigh other factors that support the cancellation. Having considered the available factors and information cumulatively and separately, overall, the Tribunal has decided that the visa should not be cancelled.
The Tribunal has found that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.
Alan McMurran
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.
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.

(b) is counterfeit or has been altered by a person who does not have authority to do so;