2115194 (Migration)

2115194 (Migration) [2022] AATA 4849 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Constantine Paxinos (MARN: 1460971)
CASE NUMBER:  2115194
MEMBER:Noelle Hossen
DATE:7 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 07 November 2022 at 12:33pm
CATCHWORDS
MIGRATION – cancellation – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – incorrect information and bogus documents provided with previous visa application – employment history and skills assessment – discretion to cancel visa – informed department of incorrect information on own initiative – information provided under influence of husband and sister-in-law and documents obtained by sister-in-law – pregnant with no job to return to at the time – education and employment – value to employer and most recent occupation on strategic skills list – members of family unit – separation from secondary applicant husband and new husband’s visa application in progress – secondary applicant child’s language and education – no jurisdiction for other applicants – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101, 103, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
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 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named applicant did not comply with section 101 and section 103 of the Act in relation to a previous Visa she had held as she provided incorrect information and provided bogus documents as per Section 5(1) in relation to her work experience as [an Occupation 1] in her Skilled 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.
The delegate considered that there was non-compliance with section 101 that requires Visa applications to be correct noting that a non-citizen must complete his or her form in such a way that no incorrect answers are to be given or provided. The delegate also considered the applicant had not complied with section 103 of the Act, that is, bogus documents are not to be given. As this was the case the first named applicant’s Visa was liable for cancellation under section 109 of the Act. The delegate after considering the first named applicant’s response and having regard to any prescribed circumstances cancelled her Visa.
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.
On 27 October 2021 the first named applicant applied to the Tribunal for review of the delegate’s decision to cancel her Visa.
The first named applicant appeared before the Tribunal on the 10 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] also known as [Short form of name] or [Nickname].
The applicants were represented in relation to the review prior to the hearing.
A s 375A certificate appeared on the Departmental file [Reference] stating that disclosure of the information in folios [deleted] would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of law which would or likely to prejudice the effectiveness of those methods. Disclosures of those folios was precluded as it would be contrary to the public interest because it could prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance. The Tribunal considered the certificate to be valid. The Tribunal sent a copy of a letter to the first named applicant on 4 October 2022 under the usual provisions asking the applicant respond prior to the hearing of 10 October 2022. The applicant did not respond to the letter.
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.
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 Section 103 of Subdivision C of the Act and Section 101(b) of Subdivision C of the Act in the following respects:
Section 101(b)
The applicant did not comply with Section 101(b) of the Subdivision C of the Act because she provided the following incorrect answers in her Skilled visa application.
Under Skills Assessment details, the applicant provided the following answers:
Nominated occupation: [Occupation 1]
Does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (temporary Graduate) visa? Yes
Name of assessing Authority: Vocational Education Training and assessment Services (VETASSESS)
Date of Skills assessment: [November] 2016
[Reference /Receipt Number]
Under Employment History, the Visa Holder provided the following answers:
Position: [Occupation 1]
Employer Name: [Employer 1]
Date from:        01 December 1999
Date to   28 February 2006
Description of Duties: [deleted].
Is the applicant claiming points for this employment?   Yes
Position: [Occupation 1]
Employer name: [Employer 2]
Country: Vietnam
Date From:    1 April 2006
Date to: 31 May 2010
Description of Duties: [deleted]
Is the applicant claiming points for this employment? Yes
Position: Principal [Occupation 1]
Employer Name: [Employer 3]
Country: Vietnam
Date from: 15 Jan 2013
Date to: 15 July 2014
Description of Duties: [deleted].
Is the applicant claiming points? No
Position: Part time and casual [Occupation 2]
Employer Name; [Employer 4]
Country: Vietnam
Date from: 1 July 1997
Date to: 30 July 2014.
Description of Duties: [deleted].
Is this application claiming points for this employment? No
Support Documents -Skills assessment
In support of these claims the applicant provided a copy of her positive skills assessment issued by VETASSES [in] November 2016, for the nominated occupation of [Occupation 1] (ANZSCO; [ Number]) A positive assessment of both qualifications and employment is required for a positive outcome. In her case the applicant held a Master of [Subject] awarded in 2012 by [University, Australia].
In support of her application, she submitted her employment in Vietnam as [Occupation 1] for [Employer 3] from January 2013 to July 2014. VETASSES assessed her employment as meeting the minimum requirement for the occupation. She received the points test advice she was assessed positively for 4.3 years in October 2007.
Supporting Documents – Evidence of employment
In support of the applicant’s claims, the applicant submitted the following documentation with the applicant’s Skilled – Nomination visa application.
[Employer 1]
Letter dated 19 September 2016 from Vice Director confirming the visa holder’s employment with them from 1 December 1999 to 28 February 2006 in the [Department]
Payroll Sheet from 1 February 2006-28 February 2006
Signed Labor Contract 1 December 1999 for the period 1 December 1999 – 31 December working eight hours per day five days per week.
Signed Labor contract 1 January 2001 – no employment dates specified, working eight hours per day, five days per week.
[Employer 2]
Letter dated 4 September 2016 from Director, [B]confirming the visa holders employment with them from 1 April 2006 to 31 May 2010 (being four years and one month)
Payroll extract from 1 April 2006 to 30 April 2006 and 1 May 2010 – 31 May 2010.
Signed Labor Contract – for an indefinite period commencing 1 April 2006, working 40 hours a week.
[Employer 3]
Letter dated 30 august 2016 from General Director, [C], confirming the visa holder’s employment from 15 January 2013 to 15 July 2014 as main [Occupation 1], [Department].”
Signed Labor Contract – for the period 15 January 2013 to 15 July 2014, working eight hours per day, 44 hours per week.
The Delegate set out in his Decision that the migration agent provided a response to the NOICC and admitted that the applicant accepted that the grounds for cancellation exists as the applicant provided incorrect information and bogus documentation.
The applicant admitted the following documentation as being bogus.
[Employer 1]
Letter dated 19 September 2016 from Vice Director, [B], confirming the visa holder’s employment with them from 1 December 1999 to 28 February 2006 in the [Department]
Payroll Sheet from 1 February 2006 -28 February 2006.
Signed Labour Contract 1 December 1999 – 31 December working eight hours per day, five days per week.
Signed Labour Contract 1 January 2001- no employment dates specified, working eight hours per day, five days per week.
[Employer 2]
Letter dated 4 September 2016 from Director, [B], confirming the visa holder’s employment with them from 1 April 2006 -31 May 2010 (being 4 years and one month)
Payroll Extract from 1 April 2006 – 30 April 2006 and 1 May 2010 – 31 May 2010.
Signed Labour contract – for an indefinite period commencing 1 April 2006, working 40 hours per week.
[Employer 3]
Letter dated 30 August 2016 from General Director, [C] confirming the Visa holders employment with them from 15 January 2013 to 15 July 2014 as main [Occupation 1] [Department].
Payroll from 15 January 2013 to 31 January 2013 and 1 July 2014 to 15 July 2014
Signed labour contract for the period 15 January 2013 to 15 July 2014, working 8 hours per day 44 hours per week.
Conclusion on non-compliance
The Tribunal has noted the response of the applicant to the NOICC dated 12 August 2021. The applicant did not dispute the allegations that there was non-compliance as set out in the notices. The applicant admitted that she did not comply and provided a statutory declaration where she set out the circumstances in which she claimed to have provided bogus documents and incorrect information to the Department.
The Tribunal received a Statutory Declaration signed by the applicant dated the 11 August 2021 and, in the declaration, she says:”
“At the time of my application regrettably I did not have the following working experience as [Occupation 1]:
[Employer 1] from 1 December 1999 to 28 February 2006 or [Employer 2] from 1 April 2006 to 31 May 2010 or [Employer 3] from 15 January 2013 to 15 July 2014.
All documents provided to VETASSES and information provided on immiaccount in support of the above work experience were not genuine.”
She confirmed that the documents as set out in paragraph 16 above were not genuine.
For these reasons, the Tribunal finds that there was noncompliance with Section 101 and s.103 by the applicant in the way described in the s 107 notice.
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
In her written submissions the applicant stated that the correct information that should have been provided to the Department on her visa application was that she had no employment history from [Employer 1], [Employer 2] and [Employer 3].
The Tribunal is of the firm opinion that the first named applicant’s employment history have been fabricated in order to meet the requirements of a Skilled Visa when she lodged her Application on the 16 April 2018.
The Tribunal considers the applicant was granted her Visa on the provision of a wide range of incorrect information and bogus documentation. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the applicant. The Tribunal gives this consideration significant weight in favour of cancelling the Visa.
The content of the genuine document (if any):
As a result of the fact that information and documents were false there should not have been a positive skills assessment issued.
On the evidence before the Tribunal, the applicant in her visa application submitted a number of documents, that the tribunal is satisfied, are bogus documents within the meaning of section 5(1)(b) of the Act.
The Tribunal is of the firm opinion that the applicant was granted this visa based on the bogus documents that were submitted as part of the application, in particular the correspondence that claims the applicant worked for the companies for almost 12 years.
The Tribunal considers the applicant was granted her visa after the provision of a wide range of bogus documentation. The Tribunal furthermore considers the provision of such false information and documentation impacts adversely upon the credibility of the applicant. The Tribunal gives this consideration significant weight in favour of cancelling the Visa.
whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant accepts that the bogus document and incorrect information to support the application for a visa so the grant of the Skilled Visa was based on the information in the bogus document and incorrect information provided by the applicant.
The applicant submitted in writing that she provided the bogus information and incorrect employment information as she was influenced by her ex-sister-in-law and ex-husband.
The background of the matter is set out in the statutory declaration that the applicant filed dated 11 August 2021. She stated that in 2009 she was granted a scholarship to study Master of [Qualification] in Australia. The scholarship was funded by [Funding body] which aimed at providing overseas training to high-performance employees. Upon finishing 2 years of her course, she went back to the [employer] to continue her job in January 2013. She said that in mid-2013 [Employer 4] nominated her for the overseas training program hosted by [Funding body] after she had completed her training in Australia from 2010 to 2012. Her nomination was approved dated 21^st of October 2013. However, in mid-2014 [Funding body] stop providing financial support to PhD students. She decided to use her own funds to pay for the tuition fees. She got a scholarship to the [University in Australia] to cover her living allowance. She submitted her 2^nd request for approval of overseas training to [Employer 4]. She received confirmation of enrolment on 9 July 2014 and received a visa to Australia on 11 July 2014.
The [employer] required her to sign the post study commitment to which she would continue to work for [Employer 4] for another 10 years after completing her PhD.
She said that 3 days before her flight to Australia she received a telephone call from her manager advising her that she had to resign. She wrote the letter of resignation and they promised that they would not require her to pay any money to [Employer 4].
She said that on the 28 July 2014 she submitted the letter of resignation. Her employment was terminated on 29 July 2014 which was 2 days before the flight.
She arrived in Australia to study for her PhD in August 2014. In early 2015 she got pregnant after 9 years of marriage. After having the baby, she was concerned about returning to Vietnam. She said that her husband had been unemployed from January 2013 to July 2014. They relied on her salary only for the entire period of time they stayed in Vietnam. She said that her ex-sister-in-law desperately wanted to send her daughter to Australia because she herself was also disappointed with how the country had been running by corruptive political system. Her sister-in-law wanted her to take her daughter with her to Australia. It was at that time she decided that she wanted to get permanent residency in Australia to get a better life for the family. She states in her statutory declaration as follows:
:” At the time when I was in Australia in 2015, some people I met told me that I could apply for Australia PR because I studied [in] Australia and the was an [Occupation 1] occupation in the list. I knew I did not have suitable working experience and said I could not apply. Then later I did hear from different people that others had gotten fake statements of employment in their home countries. My ex-sister-in-law said she could get such documents, but I did not think I would do it simply because I knew it was not right. But then my baby was getting bigger and bigger in my tummy I imagined how healthy and happy she would be in Australia as well is how unhealthy and unhappy she would be in Vietnam. The pressure from my sister-in-law was getting heavier too. Eventually I could not bear the pressure and chose the wrong path which I now immensely regret. My ex-husband, my ex-sister-in-law and I decided to have me apply for PR.
At the time, my ex-sister-in-law assured me she would be able to produce fake documents to prove my skill and eventually did it for me. I wasn’t really sure how she could get all the documents done because at that time I was in Australia and she was in Vietnam. With the positive skill assessment outcome, I applied for the PR in April 2018 when I was in Australia. It was not one of my proudest moments and I regret doing something so wrong but at the time I mistakenly thought I was going to help myself and my family.
In early 2019 there appeared cracks in my marriage and my ex-husband mostly because I wasn’t happy with my ex-husband’s inability taking care of my daughter’s inability to learn English and the loss of common interest between us.”

She stated in the statutory declaration that her PR was granted in July 2019. After the PR was granted, she and her ex-husband went to Centrelink to get their Centrelink accounts done. The difficulty that the Tribunal has is that, at the time that these parties received their positive outcome in July 2019 being the PR, they did not inform the Department of Immigration that she considered the marriage to be at an end in April 2019. She said that she did inform the Centrelink staff about the separation at the time. However later 31 July 2019 she lodged an application for childcare subsidy to Centrelink in which she indicated clearly that she and her husband separated on 1 April 2019.
She said by November 2019 she still had not heard back from Centrelink in relation to application. The reason being is that Centrelink was not of the opinion that they had separated given that there were still living under the same room, sharing bank accounts, sharing housework, and looking after their daughter together. She says that as soon as she received this advice from Centrelink she told her ex-husband that they had to split their bank accounts and he had to move out. He did not move out until January 2020. After that date she lodged another application for childcare subsidy in December 2019 in which she also indicated the separation date as 1 April 2019.
She did provide the Tribunal with the forms which she submitted to Centrelink. She confirmed to the Tribunal at the hearing, that she did not inform immigration about the separation before the PR was granted because she was not sure whether it was really a separation as per advice from Centrelink and they did not agree that the separation date was April 2019. She said she never intended to hide her circumstances because in all the forms she sent to Centrelink she always stated the separation date as 1 April 2019.
The Tribunal asked the applicant why she had not informed the Department of Immigration of her circumstances if she believed that she had separated from her husband in April 2019. She said that she had informed Centrelink but not the Department. The Tribunal told her that the reason may be that she was likely to get a benefit from Centrelink by being separated but there would be no benefit to her to advise the Department of immigration prior to the PR being granted. The Tribunal has some concerns that the first named applicant response as it seemed that the lack of advice to the Department which they had an obligation to advise of any change in their circumstances did not happen. Nevertheless, the Tribunal cannot make a finding as technically they were not separated as required pursuant to the Family Law Act as they were living together, sharing bank accounts and sharing household duties.
Her present husband [Mr A], also gave evidence at the hearing and provided the Tribunal with a statutory declaration that he signed on the 11 August 2021. In that declaration he states that they commenced their relationship in late 2018 and early 2019.
The Tribunal is satisfied that the provision of, both incorrect information and bogus documentation pertaining to the applicant’s work experience as previously summarised directly led to the applicant being granted a visa. The Tribunal is satisfied that failing to provide this information and documentation would have precipitated a situation whereby the applicant did not meet the qualifying scores and subsequently did not meet the criteria for the grant of the Visa. The evidence before the Tribunal suggests that without the submission of this incorrect information and bogus documentation the applicants would not have met the Regulations and their application would have been refused by the delegate. The Tribunal weighs this consideration in favour of cancelling the Visa,
the circumstances in which the non-compliance occurred
The circumstances are set out in the preceding paragraphs. She said in her statutory declaration that “I applied for the PR in April 2018 when I was in Australia. It was not one of my proudest moments and I regret doing something so reprehensible but at that time I mistakenly thought it was going to help myself and my family. She said further that in early 2019 there appeared cracks in her marriage with her ex-husband, mostly because she wasn’t happy with her ex-husband’s inability in taking care of her daughter, his inability to learn English and the loss of common interest between them.
She stated that in April 2019 she told her ex-husband that she wanted a separation. She said he was really shocked because this was the first time that she had ever talked to him about separating. He had begged her to give him another chance to improve himself. She said that after [November] 2018 she had started sleeping in separate rooms in the house. They had continued to maintain the sleeping arrangement. However, they still lived under the same roof and took care of their daughter together.
The delegate’s decision at page 12 states as follows:” In relation to the circumstances in which the non-compliance occurred she willingly provided the bogus skills assessment and incorrect employment information under the influence of her ex-husband and ex-sister-in-law. In November 2020 when she launched the false counterstatement she was under extreme stress and had clouded judgement due to her mental health issues as a result of the emotional abuse by her sister-in-law. In summary she provided a timeline of events from 2009 to July 2014 when she resigned from her position with [Employer 4] and travelled to Australia [in] August 2014.”
The Delegate sets out the circumstances in which the noncompliance occurred at page 18 of the Decision.” On 11 February 2017 Visa holder lodged an expression of interest for a points base skilled Visa via the invited pathway, in which she would have declared, amongst other things her nominated occupation of [Occupation 1] qualifications work experience and the Tacitus skills assessment. On the basis of having acquired the appropriate number of points on 10 April 2018 she was invited to apply for the skilled Visa. On 16 April 2018 she lodged her application.
“The non-compliance occurred on 16 April 2018 when the Visa holder lodged her skilled Visa application with incorrect answers bogus documentation and over Tacitus skills assessment issued as a result of bogus documentation and employment claims.
She has never worked as [an Occupation 1] and did not work for the three companies for which she claimed to have worked. She states her sister-in-law arrange for the bogus documents to be issued. In her and OIC see response the Visa holder advised she willingly provided the bogus skills assessment and incorrect employment information under the influence of her ex-husband and ex-sister-in-law.
“The skills assessment was issued [in] November 2016 and the skilled Visa application was lodged on 16 April 2018, some 17 months later, thereby indicating the Visa holder had substantial time to consider the consequences of her intended actions.
I accept the Visa holder may have been under pressure from her now ex-husband and ex-sister-in-law and I note the Visa holder had no job to return to in Vietnam having been forced to resign from her 17-year employment with [Employer 4]. I accept she was pregnant at the time was contemplating the future of her unborn child. However, I do not consider her circumstances were such that there were beyond her control.”
I find that having Australian University qualifications and work experience, and the visa holder had other pathways available to her. At that time according to her curriculum vitae(submitted with her NOICC response) she held a Bachelor of [Subject 3] from [University, Vietnam]; a Master of [Subject 2] awarded in 2012 by [University, Australia] and a PhD in [Subject 4] awarded in 2017. From August 2014 to the date of her Visa lodgement she was employed as [an Occupation 3] and [Occupation 4] at [Workplace]. With these qualifications and work experience you may have qualified for other skilled visas or an employee nominated scheme Visa”.
The delegate found as follows:” The Visa holder sponsored her ex-husband [the second applicant]([Date of birth 1]) her biological daughter [the fourth applicant] ([Date of birth]) and her adopted daughter the daughter of ex-sister-in-law and [the third applicant] ([Date of birth 3]) in her skilled Visa application. I consider she was aware of the fact that these three family members would acquire permanent residents’ visas on the basis of her incorrect information and bogus documentation.”
The Tribunal agrees with the findings of the delegate insofar that the circumstances in which the non-compliance occurred were not beyond the control of the first named applicant. The first named applicant was also aware that three family members would acquire permanent residents’ visas on the basis of her incorrect information and bogus documentation. The Tribunal places significant weight in favour of cancelling the Visa on those facts.
the present circumstances of the visa holder:
Prior to the cancellation of the visa the first named applicant was [an Occupation 5], [Occupation 6] and [Occupation 3] at [Workplace 6] in South Australia. Her occupation as [an Occupation 5] was on the medium and long-term strategic skills list and is in the long-term demand. South Australia is considered a regional area where it is difficult to attract skilled migrants.
The applicant states in the written submissions prepared by her migration agent as follows: ”We submit that the Australian citizens and permanent residents who benefit from the applicant’s [work] at the [Workplace] would be deprived of an excellent [Occupation 5] and [Occupation 3] was made notable contributions to the [Workplace]. The applicant is well regarded by her superiors at [Workplace 6] and her skills are highly acknowledged”.
She provided information validating her contributions to [Workplace 6] from the [Job title] they stated as follows:”[The applicant] has shown herself to be a credible and responsible person. Indeed, she has performed at the highest level, showing initiative, creativity and respect towards colleagues [and [others] alike. Among her noticeable strengths and willingness to go the extra mile, her professionalism, her strong work ethic and her excellence as [an Occupation 5]. When confronted with difficulties and challenges she meets them head-on and works collegially with peers and other relevant parties to overcome them. All these characteristics made her a significant asset to the [Workplace] and to the government [program].”
The Tribunal accepts that the first named applicant provides value to [Employer 6] as [an Occupation 5] and [Occupation 3] and places significant weight on those facts against cancelling the visa.
The applicant advised the Tribunal that since the cancellation of the Visa she has not worked.
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 first named applicant did take the initiative to inform the Department that she had supplied bogus documents and incorrect information of her own accord. She has clearly articulated why she provided the bogus documents and incorrect information as well as the circumstances surrounding the provision of those documents and information. She continued to abide by all the Visa conditions.
The first named applicant admitted that she had provided the bogus skills assessment documents and incorrect employment information under the misguided influence of ex-sister-in-law and ex-husband.
She advised the Department – the documents were false but then she lodged the false counterstatement in November 2020 she says due to extreme stress and clouded judgement because of her mental health issues as well as repeated guilt tripping from her ex-sister-in-law.
The Tribunal has read the various message exchanges between the applicant and her ex-sister-in-law and that supports the applicant’s story that she was being pressured and was suffering as a result as well as a detailed statement provided by the applicant explaining the circumstances surrounding the non-compliance.
The Tribunal does not have any concerns arising out of the first named applicant’s behaviour concerning her obligations. The Tribunal places some weight in favour of not cancelling the Visa on those facts.
any other instances of non-compliance by the visa holder known to the Minister:
There are no other instances of non-compliance by the first named applicant. The Tribunal places some weight against cancelling the Visa on those facts.
the time that has elapsed since the non-compliance:
It has been at least four years since the non-compliance occurred. The Tribunal places no weight for or against the case for cancelling the Visa on those grounds.
any breaches of the law since the non-compliance and the seriousness of those breaches:
the applicant has not been in breach of the law since the non-compliance. There is no evidence before the tribunal to the contrary. Given this the Tribunal weighs this consideration against cancelling the applicant’s Visa
any contribution made by the holder to the community:
The Tribunal found that the first named applicant played an important current role in her local community and should continue to do so. As well as her profession she is also the mother and carer of one daughter who has assimilated into Australian culture in relation to the education at her school and the Tribunal has considered the applicant’s employment, family and social ties in Australia and the present circumstances. The Tribunal weighs this consideration heavily against cancelling the Visa.
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 would be consequential cancellations under s 140.
a.The decision to cancel the Visa would result in the consequential cancellation of the Visa of the first named applicant ex-husband, biological daughter and adopted daughter. Her biological daughter was born in Australia. She has spent most of her life in Australia. The Tribunal accepts that should Visa be cancelled she is likely to suffer some hardship.
If the Visa is cancelled the first named applicant and her family must depart Australia within 35 days. In her written submissions the first named applicant stated that the Visa cancellation would be detrimental to the life of her [Age]-year-old daughter who is currently completing year [Number] at school. They would like the Tribunal to take into consideration the outcome and its effect on the applicant’s young daughter, the applicant’s regional community and her Australian employer.
The [Age]-year-old adopted daughter arrived in Australia [in] February 2020 and has therefore been in Australia for two years which the delegate did not consider to be a substantial period. Her biological mother, the first named applicant’s ex-sister-in-law arranged for the bogus documentation to be submitted with the Visa to be issued. Her mother also arranged for her to be adopted by the first named applicant, so that she could be added to her Visa application so that she could acquire permanent residency to enable her to live and study in Australia even though she has parents living in Vietnam. The delegate found that the adopted daughter was likely aware of the circumstances in which she came to be included in the first named applicant’s Visa application.
The Tribunal finds that it is unlikely that the adopted daughter will suffer any hardship as she could be reunited with her family in Vietnam. In respect of the first named applicant’s ex-husband the Tribunal does not have information in respect of his current circumstances. At the hearing the first named applicant did say that she was of the view that he had applied for a protection Visa. When questioned further she said that she did not have any information in respect of his present circumstances. The ex-husband was granted his permanent residency Visa knowing that his wife provided incorrect information and bogus documents and that he has pressured her not to advise the Department of the correct information.
The Tribunal considers that the biological daughter who was born in Australia and is approximately [Age] years of age is likely to suffer hardship because of her circumstances and having lived in Australia all her life. The Tribunal places some weight on those facts in favour of not cancelling the Visa.
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. (NOTE: It has been 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: Wan v MIMA (2001) 107 FCR 133, at [27]-[28]. whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations:
The policy guidelines require an assessment as to whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement and pursuant to the Refugees Convention and the Refugees Protocol Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the child and the International Covenant on civil and political rights.
The first named applicant is a citizen of Vietnam. If the Tribunal decides to cancel her Visa, it is open for her to return to her home country. She has not raised any claims that she fears returning to her home country.
Cancellation of the Visa would not lead to the first named applicant being removed and in breach of Australia’s non-refoulement obligations under the Refugees Convention.
The first named applicant’s child [the fourth applicant] born in Australia on [Date of birth] has a right to be cared for and have access to both parents and that appropriate steps should be taken to maintain family unity and prevent the separation of children from their parents.
Circumstances for [the fourth applicant] is that she lives with her mother and stepfather. She stated at the hearing that [the fourth applicant] sees her biological father although there are no orders in place for her care.
In her written submissions before the Tribunal, she stated as follows:” She has been living in Australia pretty much all her life she is not fluent in Vietnamese and predominantly relies on English with some bits and pieces of Vietnamese. To help her assimilate into the new environment more easily and to minimise the impact of the moves on her it would only make sense to enrol her into a prestigious international school in Vietnam that provides quality education and uses English in teaching and learning. However practically speaking it would be extremely difficult for the first named applicant to find a good job so that she could afford to send [the fourth applicant] to such an international school.”
She stated that if forced to go back to Vietnam [the fourth applicant] would have to join Year two or three or there could be a possibility that she would have to go back a year which can affect confidence. [The fourth applicant] could not read or write Vietnamese so she could not be placed into schools that use the Vietnamese language. Schools that teach students in English charge extremely high tuition fees and the fees according to the first name applicant is simply beyond the affordability of middle-income people. The annual average income of the work of a person in Vietnam in 2020 appears to be double the cost of the school fees per year. She said that assuming that both her and her husband both work they still could not afford [the fourth applicant]’s education. She also mentioned that there was a terrible covert 19 outbreak and there would be difficult in her finding a job in Vietnam that matches up with her earning capacity in Australia.

At the hearing her present husband [Mr A] said that if the family have to return to Vietnam, he will have to go back there for a period of three months in order to settle them. However, he is presently employed [in] Australia. He stated in his written evidence that travelling in the Covid 19 situation would be dangerous for their family especially for [the fourth applicant] and [Mr A] who have not been vaccinated.
The Tribunal accepts that the child [the fourth applicant] will suffer hardship if she is required to return to her home country and places significant weight on those factors against cancelling the Visa.
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:
Visa cancellation may result in the First named applicant being detained under section 189 being liable for removal from Australia under section 198 of the act as she would no longer hold a valid Visa. It would be open for her to return to Vietnam to mitigate the possibility of being placed in immigration detention.
The first named applicant may be subject to section 48 of the act preventing her from applying for further visas while in Australia.
The Tribunal places some weight on those facts in favour of not cancelling the Visa
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The Tribunal is also taking into consideration the fact that her present husband is currently awaiting the processing of a 190 Visa application which was launched on 29 April 2022. The present husband [Mr A] is employed [in] South Australia. The first named applicant submitted in writing that her husband is contributing significantly to the Australian economy particularly light of widespread skills shortages. The Tribunal takes into consideration that the first named applicant and her husband live and work in a regional area being South Australia. The applicant was up until cancellation contributing as [an Occupation 5] and [Occupation 3] at [Employer 6]. It has been well established that regional Australia struggled to attract skilled migrants to stave off steady population decline. The Tribunal places significant weight on the fact that the first named applicant in her present husband have settled in regional Australia.
The Tribunal notes that over 4 years have now elapsed since the application for a skilled Visa was lodged by the applicant. In the intervening period the applicant’s daughter has been educated in Australia, integrated into local culture and the mother has played an active and positive role as [an Occupation 5] in a regional area with significant shortages of [Occupation 3]s. On balance especially given the interests of the applicant’s daughter being weighed as a primary consideration the Tribunal considers the applicant’s the Visa should not, in such circumstances be cancelled.
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 not be cancelled.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Noelle Hossen
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.

[2022] AATA 4849

7 November 2022

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