2204504 (Migration)

[2022] AATA 5263

2204504 (Migration) [2022] AATA 5263 (8 December 2022)

APPID:           2204504

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2204504

MEMBER:Wan Shum

DATE:8 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

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

Statement made on 08 December 2022 at 12:53pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – a member of family unit – bogus documents – applicant made a false claim of being in a de facto relationship – certain documents provided in support of the claimed relationship were fraudulently altered – had given incorrect answers in the application – her child being an Australian citizen – couple were never in a de facto relationship – applicant claims he had no knowledge about the provision of bogus documents – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 375A
Migration Regulations 1994, r 2.55, Schedule 2

CASES
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visas under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The visas had been granted to the applicants on 6 December 2016 on the basis that the first named applicant (the applicant) met the primary criteria. The second named applicant was granted the visa as a member of the applicant’s family unit on the basis of their claimed

   
   

   de facto relationship.

3. Subsequently, forensic examinations revealed that certain documents provided in support of the claimed relationship were fraudulently altered. The delegate cancelled the applicant’s visa on 24 March 2022 on the grounds that bogus documents in breach of ss 103 of the Act had been given. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicants sought review of that decision and were represented in relation to the review.

5. The applicant appeared before the Tribunal on 11 October 2022 by videoconference using Microsoft Teams to give evidence and present arguments as to why her visa should not have been cancelled. The Tribunal also received oral evidence from the second named applicant, [Mr A], the first named applicant’s husband, [Mr B], and [Mrs C], the second named applicant’s mother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The representative was present with the applicant throughout the hearing.

7. The Tribunal was provided with information from the Department relevant to the cancellation and a non-disclosure certificate was issued by an Immigration officer pursuant to s 375A of the Act in respect of internal correspondence sent between officers of the Department. The Tribunal advised of the existence of the non-disclosure certificate at the hearing and provided a copy of the certificate to the applicant following the hearing, seeking her comments on the validity. In response, the Tribunal was informed that the validity of the certificate was accepted and requested that any adverse information be provided. The certificate is electronically dated and signed and stated that the release of the documents would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Tribunal considers that the reasons given for non-disclosure are specific, detailed and correctly identify the reason for non-disclosure and is therefore of the view that the certificate is valid. In addition, it is noted that the information referred to in the internal correspondence, to the extent it is relevant to the review, has been set out in the notice of intention to consider cancellation and the delegate’s decision record.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

9. The applicant first entered Australia as the holder of a student visa in October 2013. The applicant was then granted a further student visa and then on 26 October 2016, an application for a Skilled – Independent (Subclass 189) visa was lodged.

10. On the application form which was lodged online with the Department, the applicant’s relationship status was entered as de facto with the details of the second named applicant entered under the section for Migrating Family members. The applicants were granted the visas on the basis that the applicant met the primary criteria and the second named applicant was a member of her family unit, as her de facto partner.

11. Documents provided in support of the application to support the claims of being in a de facto relationship included the following:

    ·     

    two bank statements for the statement periods 1 July 2015 to 31 December 2015 and

    
    

    1 July 2016 to 5 November 2016, for a joint account with the [Bank] issued to ‘[MR A] [MISS D]’ at the address ‘[Address 1]’;

    ·     five [mobile phone] bills for the period 19 June 2015 to 18 March 2016, issued to ‘[MISS D]’ at the address ‘[Address 1]’;

    ·     five [mobile phone] bills for the period from 17 May 2016 to 18 October 2016, issued to ‘[MR A]’ at the address ‘[Address 1]’.

12. Subsequent to the grant of the Subclass 189 visas, an examination carried out by a Forensic Document Examiner at the Department found that there was evidence of intentional alteration to the above documents to a degree that the only reasonable proposition is that the originating document has been fraudulently altered.

13. Given the above, it was suspected that the applicant had provided bogus documents to the Department in support of the claimed de facto relationship for the application for the Subclass 189 visa. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of her visa setting out the alleged breaches by registered mail on 17 August 2021 to an address in “[Suburb 1]” which was returned to sender. Another copy of the Notice was sent on 6 October 2021 to an address provided by the applicant on the same day and a response was received from her appointed representative on 20 October 2021 with a request for an additional 14 days to seek further instructions from the applicant due to COVID-19 lockdowns. Additional information was provided on 4 November 2021 and, due to an error in the date referred to in the Notice of 6 October 2021, a further Notice was sent to the applicant on 21 February 2022. A response was received on 7 March 2022 with another request for an additional 14 days. The applicant’s visa was then cancelled on 24 March 2022 and she was notified of the decision by email. The second named applicant was sent a notification the following day of the cancellation of the applicant’s visa and the effect of that cancellation on his visa.

14. On review, both parties were named on the application form and the details of the applicant’s visa cancellation decision and her details were entered as Person 1 with the details of the second named applicant as Person 2. It was completed indicating that both parties were seeking review of the visa cancellation as former visa holders. However, for the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The visa held by the second named applicant was automatically cancelled as a consequence of that cancellation, by force of the operation of s 140(1) of the Act and not by a decision. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

15. The Tribunal wrote to the applicant inviting her comments on or response to information that her relationship status was entered on the online application form for the Points Based Skilled Migration Visa as de facto since 23 May 2015, with the details of [Mr A] entered under the section for Migrating Family Members as her de facto partner. The Tribunal referred to the outcome of the forensic investigation and the documents found to have been intentionally altered to a degree that the only reasonable proposition is that the originating document has been fraudulently altered.

16. In response, it was submitted that both parties have confirmed that they both maintained separate residences “while maintained their relationship”. It was submitted that both parties have provided evidence that they only provided genuine documents to the agent and they acknowledge that the documents may have been altered but it was done so without their knowledge and consent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The law

17. 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.

18. 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. While the decision maker must consider the applicant’s response (if any) to the s 107 notice (the Notice) about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c), so long as the notice is given by one of the methods set out in reg 2.55(3), it is irrelevant whether or not the applicant in fact received the Notice.

19. In this case, the method of notification chosen by the delegate was to send the Notice by registered post to the person’s last residential address known to the Minister. This resulted in multiple letters being sent, the final version of which was sent on 21 February 2022 to an address at [Address 2]. The applicant had informed the Department of this address by email on 6 October 2021 in response to an enquiry for her current address, email address and phone number. A courtesy copy of the final version of the Notice was sent to the email address of the representative whom she had appointed to provide assistance with the cancellation process for her Skilled visa on 20 October 2021.  

    The notice

20. The delegate considered that it appeared that the applicant had breached s 103 by providing documents that appeared to have been fraudulently altered.

21. 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 NOICC complied with the statutory requirements including reg 2.55(3), regarding notification of the notice.

22. The applicant responded to the NOICC, and the response is considered below.

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

23. 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 the s 103 provision of bogus documents, specifically:

    ·two bank statements for [a] Bank account in the names of ‘[MR A] [MISS D]’ at the address ‘[Address 1]’ for the statement periods 1 July 2015 to 31 December 2015 and 1 July 2016 to 5 November 2016;

    ·five [mobile phone] bills for the period 19 June 2015 to 18 March 2016, issued to ‘[MISS D]’ at the address ‘[Address 1]’.

    ·five [mobile phone] bills for the period from 17 May 2016 to 18 October 2016, issued to ‘[MR A]’ at the address ‘[Address 1]’.

    Bogus documents

24. In considering whether the identified documents are bogus documents as defined, it is claimed that the applicant had no knowledge and did not participate in altering the documents. The applicant’s evidence is that she had provided genuine documents to support her application to a ‘[Mr E]’, whom she believed was a migration agent, and that she had engaged him to apply for the visa and trusted him completely. The applicant does not dispute that the documents identified above and given with the visa application were altered but claims that she only ever provided genuine documents for the visa such as her transcript, and notarised documents from China. In her statement provided in response to the Notice, the applicant does not make any mention of the second named applicant. However, at the hearing she confirmed that they had met each other through [Mr E]. The agent had asked whether she was single and unmarried, and said that he could introduce her to a young man, who turned out to be the second named applicant. She told the Tribunal that [Mr E] informed her that if they lodged the application together, it would be faster and speed up the application. She said she added the second named applicant to her WeChat and they constantly chatted, liked each other and later met in person. The applicant described the relationship as that of boyfriend and girlfriend but confirmed that they were not in a de facto relationship and did not live together. The applicant also admitted at the hearing that she had agreed to have the second named applicant added to her visa application but claimed to not have known that they needed to have lived together.

25. Given that the applicant admits that she was not in a de facto relationship with the second named applicant and they never lived at [Address 1] together, the Tribunal concludes that the documents had been altered to reflect that they had resided at this address together when their evidence is that they did not.

26. In her statement, the applicant wrote that around June 2016, she went to [Mr E]’s office [to] sign the contract, but that she did not look closely over it “[o]ut of trust for him”. She explained that at the time, she was stressed and distracted by her father’s illness. Regardless, the applicant signed the contract and claimed that she “lost most records of my communications with [Mr E]” and that “it had never occurred to me that he would submit altered documents on my behalf”. She states that she did not check the information he lodged, that the application was lodged by [Mr E] using an account and email which she did not have access to and that she did not have any involvement in the application process.

27. The submissions reiterate that the visa application was not lodged by the applicant herself, but by another party, although there is no indication either on the visa application form itself or with the application to reflect that the application was lodged with the assistance of another party. The applicant gave evidence at the hearing that she had obtained [Mr E]’s details from [her] roommate, who had also used his services for migration.

28. The Department was not presented with any information which supports the claim that [Mr E] lodged the visa application form. The Tribunal asked for evidence of communications with [Mr E] at the hearing and following the hearing, copies of multiple emails with attachments from ‘[name]’ or [Email address 1] to [Email address 2] were provided. It was claimed these were purportedly sent by the applicant to [Mr E] with the dates 4, 5, 17 and 29 July 2016. The Tribunal notes that the attachments included the applicant’s qualifications, passport copy. The only document which contained any reference to the second named applicant was a National Police Certificate dated 22 November 2016. Both that certificate and the applicant’s National Police Certificate were addressed to them individually at the same address at [Address 3]. However, both parties gave evidence that they did not live together, with the second named applicant advising that he lived at the suburb of [Suburb 2] and not in [Suburb 1] around the time of the visa application. The Tribunal was also provided with a copy of an email sent on 26 October 2016 from [Email address 3] to the second named applicant’s email address, with translation, with the subject: “Subject: 80 form”. This document contains a list of questions asking for details such as place of birth, previous addresses and travel with some of the questions including an explanation as to the amount of detail required. A second document was also provided with the responses entered, with translation. In this document, the addresses entered reflect that the second named applicant only gave one address since his arrival in Australia which was in the Sydney suburb of [Suburb 2].

29. The applicant admits that they never lived together, now claiming that they were boyfriend and girlfriend although there is no mention of this in her response to the Department’s notice of intention to consider cancellation, either in her personal statement or in the submissions. Her evidence at the hearing was that she did not know that they needed to have lived together but the Tribunal has doubts regarding this.

30. While the email correspondence provided by the representative between each applicant and [Mr E] do not contain the same email address for [Mr E], the Tribunal is prepared to accept that the application was not lodged by the applicant herself but by a third party. It is claimed that she had no knowledge of the deliberately altered documents and the Tribunal is prepared to accept that the applicant was not directly involved in the alteration of the documents which include their names at the same address on [the] Bank and [mobile phone] statements.

31. Other than the evidence of both the applicant and [Mr A] on review, who also has an interest in the applicant’s visa not being cancelled due to the consequential cancellation of his visa, there is nothing to suggest that the parties were in any kind of relationship when the visa application was made beyond knowing each other. In the circumstances, the Tribunal has formed the view that the applicant had effectively consented to and agreed to proceed with an application which contained false information that she was in a de facto relationship with the second named applicant.

32. In any case, it is not necessary when making a finding as to whether there has been non-compliance with s 103 that the applicant had personally altered the documents. Irrespective of whether she did or did not give explicit instructions to [Mr E] to create and submit intentionally altered documents, the applicant’s own evidence is that she entrusted the agent with the entire process and was aware that another party would be added as a member of her family unit when he was not. In these circumstances, the Tribunal considers that she caused the evidence to be given for this application by authorising another party to prepare and lodge the application on her behalf.

33. It is also not necessary for the Tribunal to reach a concluded view on who altered the documents, but in this case, it would appear likely to have been [Mr E], or perhaps an associate of this person. There is nothing to suggest that [Mr E] or any other person had authority to alter the bank account or [mobile phone] statements that were given with the applicant’s visa application and the Tribunal suspects that the alterations were done by a person who did not have authority to do so. Given this, the Tribunal finds on the evidence before it that the documents examined and listed above had been altered and reasonably suspects that the documents were altered by a person who does not have authority to do so.

1. Having regard to the evidence that she had trusted [Mr E] with the Subclass 189 visa application, the Tribunal has formed the view that in the circumstances, the applicant had effectively caused these documents to be provided by relying upon, and authorising [Mr E] to lodge the application without having checked the application herself. It appears that the applicant did not take any interest in what was submitted to the Department so while she may not have known which documents were altered or how they were altered, the Tribunal finds that the applicant authorised the agent to lodge the visa application with [Mr A] added to her application and that any alterations to the documents were done without authority from the organisation that purportedly issued the statements. The Tribunal therefore finds that the applicant gave, presented or provided to an officer, an authorised system, the Minister a bogus document or caused such a document to be so given, presented or provided. For this reason, there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

2. 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).

3. 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 content of the genuine document (if any)

   ·     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 circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

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

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

4. 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.

5. The evidence provided in response to the NOICC and on review is that the applicant and the second named applicant were not de facto partners, did not reside at an address in [Suburb 1] together and they did not have a joint bank account. The Tribunal considers this to be a deliberate fraud on the Department in order to obtain a benefit.

6. It was effectively submitted that the grant of the Subclass 189 visa to the applicant was not based on the bogus documents because the applicant would have been granted the visa anyway as she met the primary criteria for the grant of the visa. Reference was made to the AAT decision in Kukadia (Migration) [2019] AATA 4527 where the member in that case recognised and gave weight to the fact that the applicant was able to satisfy the relevant primary criteria for the grant of the visa and the provision of the bogus document submitted had no bearing on the outcome of the application. In that case, the visa applicant’s Subclass 188 visa had been cancelled as the primary visa applicant had supplied false documents showing his wife had completed high school to avoid paying $4,890 for functional English. The member found that the documents in issue had no impact on the capacity of the applicant to meet the essential criteria for the grant of the visa and placed significant weight on this consideration in favour of not cancelling the applicant’s visa.

7. The Tribunal has taken into account that there is no apparent advantage from an immigration perspective to the applicant of having added [Mr A] to her visa application, as her claim is that she would have met the requirements for the grant of the visa on her own. But there is no suggestion that [Mr A] would have been granted the visa without the applicant’s agreement to his being included as a purported member of her family unit. This is clearly different to the circumstances in Kukadia, as that was not a case where the applicant wife was falsely claiming to be a member of the primary visa applicant’s family unit. In any case, the Tribunal is not bound by the decision of another decision maker and it does not consider that it is required to adopt the same conclusion to the facts and circumstances in this matter.

8. Furthermore, even if a Subclass 189 visa would have been granted to the applicant, it is not claimed, and there is no evidence that, it would have been granted to the second named applicant such that the false claims of being in a de facto relationship and provision of bogus documents did result in the grant of a permanent visa to a person who was not entitled to the visa.

9. The circumstances in which the non-compliance occurred based on the applicant’s evidence is that she was seeking to apply for a permanent visa after completing her studies. She approached [Mr E] to lodge the visa application, signed a contract apparently without reading through it and agreed to meeting the second named applicant and adding him to her application. The Tribunal finds that she had entrusted the entire visa application process to another party, was aware that another person was being added who was relying on her skills and qualifications to satisfy the criteria for the grant of the visa and is of the view that she was indifferent to the agent acting dishonestly by adding  [Mr A] to her application as a member of her family unit. Even if she was not aware that there were documents given with the application that were fraudulently altered, she knew that another party was being added to her application as her de facto partner when she was not in that kind of relationship with the second named applicant and she was evidently complicit in the fraud.

10. In terms of why the applicant agreed to proceed in this manner, the applicant did not provide a convincing explanation, repeating that she was distracted and stressed by her father’s health. It is not clear to the Tribunal on the material before it whether there were any other benefits to the applicant from the arrangements in this case. Both parties claimed to have paid [Mr E] in RMB, and the Tribunal notes that the fees  [Mr A] claims to have paid to [Mr E] was double that which the first named applicant claims to have paid, being RMB 100,000 compared to RMB 50,000. The Tribunal was not provided with any evidence of payment to [Mr E] for the visa process by either party but, accepting that each party made a payment for [Mr E]’s services and the amounts differed, it is possible that there may have been some form of financial recompense for the applicant to have [Mr A] added to her visa application given the risk of visa refusal or cancellation and the implications of these to her claimed intentions of settling in Australia. The applicant has apologised for not checking the visa application and, while she may now feel regret for agreeing to this course of action, likely only because her visa has been cancelled, there is nothing to suggest she was coerced or pressured to do this. It was claimed that she was under a lot of stress at the time, and while the Tribunal has taken this into account, ultimately, it was her responsibility to ensure the visa application that was being lodged on her behalf was accurate and correct and she failed to do that. Regardless of whether she knew that bogus documents would or had been provided, the applicant acquiesced to [Mr E] proceeding to lodge an application on her behalf while adding [Mr A] to her application.

11. The Tribunal is not persuaded that her ability to meet the criteria for the visa without the bogus documents and being under stress overcomes the seriousness of her involvement in enabling the grant of a permanent visa for another person who was not entitled to the visa. She could have decided not to proceed with using his services when it was suggested to her that [Mr A] would be added as her de facto, but it appears that she did not consider that proceeding in this manner was dishonest or deceptive.

12. Currently the applicant is in Australia with her husband and child. The applicant first arrived in Australia in 2013 and, while acknowledging that she had not been in Australia from November 2017 to February 2021, it was submitted that she had the intention to remain in Australia on a permanent basis and regards Australia as her home. The applicant explained that she had returned to China because of her father’s health and remained there with her mother and then because of COVID-19 restrictions on travel. It was submitted that once she was able to return to Australia, she returned and gave birth to her child so that her child can obtain Australian citizenship. Much of the submissions are focused on the difficulties the applicant and her husband and child will face if her visa remains cancelled and she has to return to China. Since departing Australia and returning to China in 2017, she married [Mr B] who she met in China at the end of 2017. It is claimed that they purchased an apartment in a development but that the developers ran off with their money. The purchase suggests that they had intended to live and settle in China. The applicant’s mother remains in China as do her husband’s family. While the applicant claims that her mother is suffering from depression which would make the applicant’s life in China difficult, they do not have any family in Australia so their familial ties are stronger in China than in Australia.

13. It was submitted that the applicant would have difficulties in obtaining gainful employment or progressing her career if she were to return to China, having no work experience and her post graduate qualifications being Australian. The Tribunal acknowledges that the applicant completed her Master’s degree in [Australia], after having failed 3 out of 4 subjects at [the] University as revealed in the education documents she claims were provided to [Mr E], but does not consider the assertion that her Australian qualifications would make it difficult for her to find work is supported by any evidence.

14. The applicant claims that it would be difficult for her to compete against young graduates in China as she has a young child and will not be able to work the same hours or the expected overtime. It is claimed that in Australia, she is currently on social media promoting goods for sale and had 1,419 followers at the time of her written statement dated 21 September 2022 and also has investment plans. The applicant referred to her career having just started in Australia and that, if she leaves, her business partner will suffer a big loss. It was submitted in response to the Notice in November 2021 that the applicant had made significant investments and was planning to establish her business with [Ms F] in Australia and the process is underway. The submissions regarding her claimed business partnership with [Ms F] was accompanied by screenshots of money transfers which was described as being for initial financial preparation to obtain clothing samples for their partnership. However, in the Tribunal’s view the evidence does not reflect that the applicant has invested “considerable financial resources” as submitted, with the total amounting to around RMB56,000 (approximately $13,000). The evidence relied upon reflects that the applicant declared business income of $7,424 on her tax return for the year ending 30 June 2022. There is little evidence of business activity or existence of a company, with no documents such as Business Activity Statements or financial statements, which the Tribunal asked for at the hearing. While it has taken into account the material provided, the Tribunal does not consider that this reflects business activities of any note. The claim that the applicant being required to leave Australia would result in financial hardship to both parties is not made out in the Tribunal’s view.

15. In terms of the claim made in November 2021 that the applicant planned to invest in and operate a [shop] with her [friend], the applicant advised that this has not eventuated. The Tribunal does not accept on the evidence that if the applicant was to leave Australia, she and her business partners would suffer great financial hardship.

16. The Tribunal accepts that the applicant has close friends in Australia and that she wishes to start a life here with her husband, whom she met in China in late 2017 and came to Australia on a visitor visa with the applicant in February 2021. It is claimed that they have been moving their assets across to Australia, although limited evidence was provided of this, with a copy of the applicant’s bank account statement showing one transfer of around $50,000 in July 2021 and then a copy of the statement for the period from 4 August to 16 September 2022 reflecting a balance of $500. Even if they had been transferring their assets since arriving in February 2021, while the applicant claims that she “would lose thousands of dollars in transaction fees” there is nothing before the Tribunal which reflects this or that they would be unable to transfer the money back to China. In any case, the Tribunal does not consider that any losses from transfer of assets, financial or otherwise, would be significant. The applicant claims that they will have no place to live if they go back to China, referring to the purchase of a property in China where the developer ran away and the entire purchase money was around 6,510,000 CNY, and that with a baby it will cause great difficulty. The Tribunal does not consider that the applicant has presented evidence which reflects her claim that they will struggle with finding a place to live if they were to return. She had been living in China from mid 2017 to early 2021 and there is no evidence that she had trouble finding a place to live during that period, it being apparent that they were not living in the property that was purchased a few years ago as it was still under development. The applicant and her husband did not provide any evidence to support the assertion that having a baby would have an impact on their ability to find a place to live in China.

17. It was submitted that the applicant’s social circle is predominately in Australia and leaving Australia will deprive her of all her social connections and sense of belonging. The Tribunal has considered the letters from [the three witnesses], who appear to have all come to Australia and later become Australian citizens or permanent residents. They are the applicant’s friends and attest to her good character and the impact on their lives if she was required to leave Australia. The Tribunal has taken into account these statements and accepts that the applicant has made close friendships with a number of Australian citizens and permanent residents but is doubtful that the strength of her social connections and sense of belonging in Australia is greater than in China as submitted, noting that their evidence is that she has spent more time in recent years (since being granted the permanent visa) in China rather than in Australia. While the applicant claims that she had intended to return earlier but was unable due to COVID-19 travel and border restrictions, it appears that the applicant and her husband had intended to live in China with the purchase of a property and the Tribunal is not convinced on the evidence before it that the applicant has strong financial and social links in Australia as submitted. Nor does the Tribunal consider that the applicant has presented evidence which supports a conclusion that she and her husband would be unable to return to live and work in China. It places little weight on any potential financial hardship which she and her husband may suffer.

18. The applicant has provided a statement from a psychologist who she saw for the first time in August 2022 after the visa was cancelled and notes that the psychologist recommends that the applicant should continue psychological intervention in Australia. The Tribunal has taken this recommendation into account in weighing up the reasons whether the applicant’s visa should be cancelled. 

19. The applicant referred in her statement to being a nice person, that she donated to the Australia Red Cross and that she had recently rescued a lost cat. Her friends refer to her good and innocent nature and how much they rely on her friendship and accepts that she has some close friends here. The Tribunal has taken into account the applicant’s claimed contribution to Australian society and considers these to be minor in nature.

20. The submissions refer to the s 48 bar, PIC 4013 criterion which imposes a 3-year exclusion period if a person has previously had their visa cancelled as a mandatory legal consequence to a cancellation decision, and PIC 4020. The Tribunal has taken into account that if the applicant’s visa remains cancelled and if she does not hold any other visa, she would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. It has also taken into account the exclusion period in relation to some visas and that the applicant would have limited opportunities to make visa applications onshore, as well as the applicant losing some benefits that she may have been entitled to as a permanent resident of Australia. It is also likely that a cancellation would be a relevant consideration in any possible future visa applications she and her husband may wish to make. The Tribunal has considered the consequences outlined and is of the view that they are legitimate consequences imposed to deter others from engaging in similar fraudulent conduct. The Tribunal considers these restrictions to be a legitimate and appropriate consequence of agreeing to allow another party to be included on her visa application which enabled him to gain a benefit that he would not have been entitled.

21. [Mr A] was granted a visa as a dependant and his visa was cancelled under s 140 and would remain cancelled if the applicant’s visa remains cancelled. The Tribunal was provided with statements from [Mr A], his wife and his mother-in-law and evidence that he is currently employed and supporting his wife and mother-in-law financially and emotionally. The Tribunal has considered their evidence about their current circumstances but is not of the view that the impact on each of them considered cumulatively is a reason for setting aside the cancellation, as [Mr A] was not entitled to the visa. Furthermore, despite claiming in his statement that he believes he was a victim of the agent’s fraud, it is apparent from the evidence given by both parties of the circumstances surrounding the visa application that he was aware that he was not able to obtain a permanent visa himself and was relying on the applicant being able to satisfy the criteria. The Tribunal notes that  [Mr A]’s wife is an Australian permanent resident and that there may be a possible visa pathway for  [Mr A] even if the applicant’s visa remains cancelled and his Subclass 189 visa remains cancelled as a consequence.

1. It was submitted that there are no other instances of non-compliance with the Act and the Tribunal is not aware of any information which reflects that the applicant failed to comply with the conditions of the visas she previously held. The Tribunal acknowledges that the visa application was lodged over 6 years ago and the visa was granted in December 2016. Since the grant, the applicant has spent most of this time in China and met and married her husband in China where they had invested in property development. It notes that her mother and her husband’s family remain in China, and while it is claimed that her mother suffers from depression which the applicant claimed could prevent the applicant from being able to socialise, work and live, this does not support in the Tribunal’s view a conclusion that the applicant cannot return to China.

2. It was submitted that if the visa is cancelled, and the applicant has to leave Australia, that the policy of the Chinese government toward COVID-19 would make it even harder for the applicant and her husband and child on their return to China. The Tribunal has taken this into account and accepts that the Chinese government has adopted strict measures to prevent the spread of COVID-19 but notes that these measures are supposed to be temporary in nature. The current situation appears changeable, with the submissions referring to the Delta variant which does not appear to be spreading any longer.

3. In terms of whether there are children whose interests would be affected, the Tribunal accepts that the applicant gave birth shortly after returning to Australia and, as she still held a permanent visa at the time, her child is an Australian citizen by birth. He is less than [age] years old, born on [date]. The Tribunal acknowledges that the child is an Australian citizen, and has taken into account the applicant’s claims that she needs to stay in Australia to look after him and accompany his growth and that, if he departed Australia with her, he would not get the chance to enjoy superior health care and education in Australia, that he may get sick from travelling, that his nutrition and health will be negatively impacted because the quality of food and milk powder is inconsistent in China and also that she does not want him to grow and develop in the competitive atmosphere in China which could create mental pressure for him. It does not appear to the Tribunal based on her evidence and statements that her visa cancellation would lead to splitting up of the family unit as she addresses the negatives of his growing up in China, although she did refer to possibly being required to be apart as a consequence of COVID-19 precautions, but the Tribunal understands that while distressing, this would be a temporary measure only while infected. The Tribunal has taken into account the matters raised regarding the different systems and environment if he were to return to China but considers the impact on the child’s growth and development to be speculative in nature and that a cancellation of the applicant’s visa now will not necessarily prevent the child from accessing health care and education in Australia permanently. Notwithstanding this, the Tribunal has given weight to her child being an Australian citizen as a factor for setting aside the cancellation.

4. There is nothing before the Tribunal to indicate that cancellation of the visa 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 explicitly claim, that Australia has protection obligations towards her. The applicant wrote in her response to the Notice that her husband will face severe hardship if he has to go back to China as one of his relatives had been having trouble with the Chinese authorities and that he may be persecuted and harassed by the authorities because he is family. [Mr B]’s evidence is that he is a Christian and he and his family will be subject to persecution if he was to practise his religion openly. The Tribunal notes that the applicant’s husband is able to make an application for a protection visa if he believes Australia owes him protection obligations on the basis of his Christianity or any other Convention reason. There is nothing in either the applicant’s or her husband’s circumstances which prevents claims of harm being canvassed in a protection visa application and the Tribunal does not consider that the claimed circumstances support a decision not to cancel the visa.

5. In respect of the degree of hardship that may be caused to the applicant, the Tribunal accepts that there would likely be an adjustment period if she was required to return to China because her visa was cancelled now that her child has been born. The Tribunal does not consider any financial impact will be significant and notes her limited business activities, being the [business] with [Ms F], appear to be predominately online so the Tribunal does not accept that she must remain in Australia to continue these activities. The Tribunal has taken into account that the applicant’s asthma would be triggered in China due to the poor air quality and that the restrictions around COVID-19 meant that her child might be removed from her. The Tribunal has considered the degree of hardship that may be caused to the visa applicant and accepts that she wishes to remain in Australia and raise her child in Australia. Considering the matters raised, the Tribunal accepts that the cancellation of the visa would cause a degree of hardship to the applicant as she wishes to live and work in Australia with her husband and child and that she has friends in Australia.

   Summary

6. The Tribunal finds that there was a breach of s 103 of the Act in the way described in the Notice and that there are grounds for cancelling the visa. In considering whether the visa should be cancelled, the Tribunal has given careful consideration to the applicant’s and  [Mr A]’s circumstances and has taken into account the reasons given for why the visa should not be cancelled, which includes the applicant’s life in Australia and the difficulties she may face in returning to China and having to find a job and somewhere to live particularly now due to the Chinese government’s COVID-19 policy. The applicant’s child was born in Australia in May 2021 and is an Australia citizen.

7. Against these considerations, the Tribunal places substantial weight on the fact that the applicant aided another party to obtain a permanent visa to remain in Australia for which he was not entitled at the time. While it is claimed that the applicant would have been granted the visa having satisfied the primary criteria on her own skills and qualifications, there is no suggestion that [Mr A] would have met the requirements for the permanent visa himself. It appears that he is now in a spouse relationship with an Australian permanent resident, and the Tribunal has taken in account the possible impact if he is removed from Australia on his wife and mother-in-law who have given evidence regarding the significant impact of the cancellation to their lives. However, the Tribunal considers that there is a potential visa pathway for the second named applicant and is not persuaded that the applicant’s visa should not be cancelled because of [Mr A]’s current circumstances in Australia. In terms of her own family, it is an important factor that the child is an Australian citizen. However, the child is in his infancy and the Tribunal does not consider that there is any real possibility of separation, as the family wish to remain together whether that is in Australia or in China.

8. Having regard to the claimed possible hardship and difficulties that may be faced by the applicant and her husband and child on return to China as well as any impact on her business partners in Australia, the Tribunal does not consider that the number of years spent in Australia, her close friendships here, her contribution to others and her Australian citizen child outweighs her involvement in making an application for a permanent visa based on false claims that [Mr A] was her de facto partner. The applicant had agreed to proceed on this basis and only admitted that she was aware of the false claim that they were de facto partners after her visa had been cancelled. It is claimed that she has made a mistake in not checking her application and that people make mistakes. However, the Tribunal considers this graver than a ‘mistake’. Her conduct and agreement to be engaged in making false and dishonest claims undermines the integrity of Australia’s immigration system. By agreeing to proceed in this way, she has made a mockery of the visa deliberation process.

   Conclusion

9. 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, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision under review to cancel the first named applicant’s Subclass 189 - Skilled - Independent visa.

11. The Tribunal has no jurisdiction with respect to the other applicant.

    Wan Shum
    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.