2204760 (Migration)

[2023] AATA 3592

2204760 (Migration) [2023] AATA 3592 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2204760

DEPUTY PRESIDENT:  Antoinette Younes

DATE:12 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 12 April 2023 at 10:35am

CATCHWORDS 
MIGRATION – cancellation– subclass 155 (Five Year Resident Return) visa – applicant had given incorrect answer – applicant has never been in a relationship with [Mr B] – applicant was promised financial benefits to include him in the visa application – bogus documents – applicant did not claim any points for her claimed de facto partner– contribution to the Australian community – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, 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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with ss 101(b) and 103 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 29 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

5. 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

6. 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.

7. 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.

8. 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?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss 101(b) and 103 of the Act. 

10. Section 101 of the Act provides that:

    Visa 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.

11. The Act does not define the term “incorrect”. However, s 100 provides that 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”.

12. Section 98 provides:

    Completion 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.

13. Section 99 provides:

    Information 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.

14. Section 107A provides:

    Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

    The possible non-compliances that:

    (a)   may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)   if so specified, can constitute a ground for the cancellation of that visa under section 109;

    include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

15. Section 103 of the Act provides:

    Section 103 Bogus 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.

16. For the purposes of Subdivision C of the Act, ‘bogus document’ is defined at s 5(1) as follows:

    Bogus document

    …in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a) purports to have been, but was not, issued in respect of the person; or

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

    (c) was obtained because of a false or misleading statement, whether or not made knowingly.

17. By way of background, on 29 December 2016, the applicant lodged an online Application for Points Based Skilled Migration Visa (SMV).  She included [Mr B] (DOB: [date]) as her de facto partner.  In the application, she provided the following details:

    ·On page two of the form, under the heading Relationship status, she stated that she was in a de facto relationship and that it began on 12 April 2015.

    ·On pages three and four of the visa application form, under the heading Migrating family members, she indicated that there is a migrating family member included in this application, namely her de facto partner, whose passport details are:

    Family name: [Mr B]

    Given name: [Mr B]

    Sex: Male

    Date of birth: [date]

    Passport number: [deleted]

    Country of passport: CHINA – CH.

    ·On page 14 of the form, under the heading Declarations: Warning: Giving false or misleading information is a serious offence, the applicants declared that they:

    I.Have read and understood the information provided to them in the application.

    II.Have provided complete and correct information in every detail on this form, and on any attachments to it.

    III.Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.

    IV.Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

18. In support, the applicant provided the following relevant documents:

    ·Three [Bank 1] statements for account number: [deleted] purportedly addressed to [the applicant] at [Address 1] for the following statement periods: 16 September 2015 - 15 December 2015, 16 December 2015 - 15 June 2016, 16 June 2016 - 15 December 2016.

    ·Two [Bank 1] statements for account number: [number] purportedly addressed to [Mr B] and [the applicant] at [Address 1] for the following statement periods: 15 April 2016 - 30 June 2016 and 1 June 2016 - 24 October 2016.

    ·Six Telstra bills for account number: [number] purportedly addressed to [Mr B] and [the applicant] at [Address 1] for the following billing periods: 3 December 2016 - 2 January 2017; 3 October 2015 - 2 November 2015; 3 December 2015 - 2 January 2016; 3 June 2016 - 2 July 2016; 3 July 2015 - 2 August 2015; and 3 November 2015 - 2 December 2015.

    ·An AGL electricity bill for account number: [number] purportedly addressed to [Mr B] and [the applicant] at [Address 1] for the following billing period: 19 April 2016 - 15 July 2016.

19. On 16 June 2017, the SMV was granted to both the applicant and [Mr B] as her de facto partner.

    Events subsequent to the visa grants

20. During the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record, namely that the Department conducted an integrity analysis and a Forensic Document Examiner found that there is evidence of intentional alteration to the address on the [Bank 1] statements to a degree that the only reasonable proposition is that the originating documents have been fraudulently altered.  The forensic examination revealed the following:

    ·The correct address for the three [Bank 1] statements for account number: [deleted] is [Address 2], not [Address 1]. 

    ·The correct address for the two [Bank 1] statements for account number: [number] is [Address 3], not [Address 1].

21. The delegate’s decision record further indicates that on 8 April 2020, the applicant lodged an application for Australian citizenship in which she stated that her current address was [Address 4].  In answer to the question, Has the applicant had any other addresses in the past 5 years? the applicant listed four other addresses, which did not include [Address 1].

22. On 6 November 2020, the Department sent the applicant an invitation to comment on the above information. The applicant’s representative provided a response on 4 December 2020, including the applicant’s Statutory Declaration dated 3 December 2020, in which she indicated the following:

    ·She has never been in a relationship with [Mr B]. 

    ·At the time of the visa application, she was experiencing financial difficulties due to owing money to a friend who assisted the family in settling a property purchased by her mother, who was having cash flow difficulties in her business in China.

    ·A person by the name of [Mr C] contacted her on [social media] and asked her to include a dependent applicant in her visa application in exchange for money.  She agreed but soon after the visa application was lodged, she never heard from [Mr C] again or received any money.  She only met [Mr B] for the purpose of taking photographs.

    ·She does not recognise the address at [Address 1] and has never resided at that location.  She did not provide any [Bank 1] statements or utility bills to [Mr C].  She did not personally alter the address block or any details of the bank statements or utility bills.  She never saw the final documents submitted through the ImmiAccount as she did not personally lodge the application.  She only found out about the outcome of the visa application when she received an automated email sent to her advising of the removal of the expression of interest (EOI).  She had to register for an ImmiAccount to access the visa grant.

    ·She accepts full responsibility for including [Mr B] as a dependent applicant in her visa application.  She accepts that her conduct was wrong and fell short of a person of good character.  She was blinded by the potential financial gain to alleviate financial stress.

    ·She is deeply remorseful and sincerely apologises for her wrongful conduct.

    Notice of Intention to Consider Cancellation (NOICC) and response

23. On 11 November 2021, the Department sent the applicant a NOICC referring to potential non-compliance with ss 101(b) and 103 of the Act.  On 3 March 2022, the Department sent another NOICC due to the identification of an error in the first NOICC, again identifying potential non-compliance with ss 101(b) and 103 of the Act.

24. The applicant responded in November 2021 and March 2022, reiterating her earlier responses.

25. In submissions dated 25 November 2021, the representative summarised the applicant’s background.  Relevantly, the representative contended that the applicant provided genuine documents and met the criteria for the visa grant.  Consequently, the grant was not based wholly or partly on the incorrect information.

26. In a statement dated 17 March 2022, the applicant reiterated her earlier responses.  She explained the following matters:

    ·In 2016, she graduated with a [degree] and claimed 75 points when she received the EOI.  She did not claim any points for her claimed de facto partner. 

    ·Due to financial difficulties in the family settling the purchase of a property in Australia, she was under immense pressure .  She sought assistance from a therapist when she returned to China.  She had to continue to borrow money. 

    ·In 2016, [Mr C] asked her to send her all documents such as qualifications and work experience and the applicant sent her real documents.  She did not know that the application was lodged. 

    ·She admits her mistake and she understands that it is her responsibility to ensure the accuracy of the information provided.  She did not alter any documents.  She provided correct information in her citizenship application.

    ·She has been attending church and has done volunteer work.  She works in [industry].  During the COVID-19 lockdown in Melbourne, she helped the COVID-19 team in [her workplace] to make calls and other tasks.  She participated in various volunteer programs.  She is also a Red Cross and Church City donor.

    ·She has settled in Australia.  She came to Australia in 2011 and has obtained [various qualifications].  She has worked in various roles since 2014.  She is a good team player in her workplace and organises activities.

    ·She has purchased property in Sydney and a car.  All her assets are in Australia and she is paying off a mortgage.  All her social connections are in Australia.  She helped her best friend to find her first [job] and care for her dog.  She supported her friend during a divorce.

    ·She will face significant hardship if she has to leave Australia.  She needs to work to repay the mortgage and she would struggle to find work in China, as the [system] is different in China.  She has been in Australia for 10 years.  Her parents are divorced and her mother is currently in Australia and she has applied for a permanent visa.  Her mother is engaged and is planning to marry in Australia.  Her mother has applied for a partner visa.  There is no one left in China. 

    ·Her parents divorced when she was [age] years old.  Her father was violent towards her and her mother.  They relied on her grandmother for financial support.

    ·There are not enough skilled workers in Sydney and the [industry] is experiencing a shortage in talented workers.  She has significant skills, recognised by her employer.  She is involved in a project and she is indispensable.  Her employer would suffer great hardship if she left.

    ·She understands the seriousness of her conduct and accepts full responsibility.

27. In support of her response, the applicant provided documents including: a current job plan, a Contract for Sale of Land, ATO income assessments, a document setting out her community and social activities, email communications with the agent, an employment record, a salary review, a document recognising her as an outstanding employee, Red Cross donor information, a TAFE enrolment certificate and a document showing that she was in the volunteer tutor program there, a record of a car purchase, records of donations to and volunteer details at [church], a letter from psychologist [dated] 15 February 2022 relating to anxiety and depression, reference letters from [Ms A] (friend) and [name] (employer), and photographs.

    Material provided to the Tribunal

28. The applicant provided multiple documents including: a copy of the delegate’s decision record, a Health Summary Sheet referring to the applicant suffering from multiple conditions, including anxiety and depression, a letter dated 17 February 2023 from [a consultant psychiatrist] referring to the various medications prescribed to the applicant, a report from [a psychologist] dated 28 February 2023, referring to the applicant suffering from moderate range depression and severe range anxiety and stress, a letter and its translation from [a former forensic doctor] referring to the mother’s injuries due to physical assaults, letters of employment offer from [employer], a character reference and a post-hearing email from [her employer], dated 28 February 2023, certificates of achievement, Red Cross donations statement, Statutory Declaration of the applicant dated 25 March 2023, [a] Financial Services car loan statement, [bank] account statement, Notarial Certificate and other identity documents, transaction details evidencing loan repayments from the applicant to [Ms A], research paper relating to status of patients with Hepatitis B in China, and Subclass 820 visa grant to the applicant’s mother.

29. In the Statutory Declaration of the applicant dated 25 March 2023, the applicant reiterated the information she had provided earlier, including in relation to the family violence she and her mother had suffered at the hands of her father, the financial problems her mother experienced and its adverse impacts on the applicant, being approached by an agent to handle her visa application, her timely disclosure that incorrect information had been provided, her Christian faith, being a Hepatitis B carrier, and her sincere apologies.

30. In the course of the hearing, the applicant confirmed that incorrect information was provided in the visa application, regarding the claimed de facto relationship with [Mr B].  She maintained that she did not personally alter any documents or provide [Mr C] with any bank statements, Telstra bills, or AGL/electricity bills.  However, she conceded that she agreed to add [Mr B] as her de facto partner, knowing this to be incorrect.  She also confirmed that she agreed to have photographs with him for the purpose of the partner visa application.   The Tribunal explained to the applicant that for the purposes of ss 101(b) and 103, there does not have to be actual knowledge on the part of an applicant that the information provided is incorrect.

31. On the evidence, the Tribunal finds that the applicant breached both ss 101(b) and 103.  She breached s 101(b) when she included [Mr B] in her visa application as her de facto partner, which was incorrect.  The relevant answers to questions on pages 2, 3, 4, and 14 are incorrect.  The Tribunal also finds that the applicant breached s 103 in that she included in her application to the Department bogus documents, namely, bank statements, Telstra bills or AGL/electricity bills to be provided in support of the relationship, irrespective of who altered those documents.

32. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

1. 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).

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 Migration Regulations 1994 (Cth). Briefly, they are as set out below.

   The correct information

3. The correct information is that the applicant was not in a de facto relationship with [Mr B] that commenced on 12 April 2015.  The correct information is that they did not reside together at [Address 1] as stated in the visa application.  The correct information is that the applicant and [Mr B] have never been in a relationship and that she was promised financial benefits to include him in the visa application to facilitate him obtaining an Australian visa. 

4. The Tribunal is satisfied on the evidence that the applicant agreed, for financial benefit, to include [Mr B] in her visa application, knowing this to be incorrect.  The Tribunal considers the applicant’s conduct to be serious.

5. The Tribunal gives this consideration significant weight in favour of cancellation.

   The content of the genuine document (if any)

6. As mentioned earlier, the Department conducted examinations that confirmed that the relevant documents are bogus.  Forensic examination of the [Bank 1] statements has found that the correct address registered for the genuine [Bank 1] statements for account number [deleted] is [Address 2], not [Address 1]. For the [Bank 1] statements for account number [number], the correct address is [Address 3], not [Address 1], as purported.

7. The Tribunal is satisfied on the evidence that the documents have been altered to reflect the alleged address where the applicant and [Mr B] claimed to have lived together, to support their claimed de facto relationship. The applicant has maintained that she did not provide or alter the documents provided to the Department in support of her application.  As explained to the applicant in the course of the hearing, s 103 applies regardless.

8. The Tribunal gives this consideration significant weight in favour of cancellation.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

9. In response to the NOICC, the applicant indicated that in 2016, she graduated with a [degree], and she claimed 75 points when she received the EOI.  She noted that she did not claim any points for the de facto partner.  However, she stated that she was not sure what [Mr C] did without knowledge or approval. She stated that the 75 points were claimed for the following:

Age	30
IELTS	10
Related work experience	5
Education	15
Two years’ study	5
NAATI	5
PY	5
Total	75

1. In submissions and in oral evidence, it was argued that the applicant had the required points in order to be granted the Subclass 189 visa and that the visa was granted on that basis.  It was contended that the claimed de facto partner did not have any bearing on the grant.

2. Although one might reasonably suggest that had the delegate known that incorrect information and bogus documents had been provided, the visa would not have been granted, as the applicant would likely not have met the relevant character requirements, the evidence also indicates that the applicant had the required 75 points and would have been granted the visa on her own merits. 

3. The question, though, is whether the decision to grant the visa was based, wholly or partly, on incorrect information or the bogus documents, which is not the case in the current circumstances. 

4. Although it is plausible that [Mr C] claimed points for partner skills, on the evidence, the Tribunal is satisfied that the visa was granted on the basis of the applicant personally meeting the required points, and she did; there is no evidence to suggest that any of the documents provided to meet the points required were bogus. 

5. The Tribunal gives this consideration some weight in favour of the applicant.

   The circumstances in which the non-compliance occurred

6. On 29 December 2016, the applicant lodged an application for a Skilled Independent (Subclass 189) visa in which she included [Mr B] as a dependent applicant on the basis of a claimed de facto relationship. The non-compliance occurred in the application form, which claimed that [Mr B] had been the applicant’s de facto partner since 12 April 2015 and that their shared residential address was [Address 1].

7. The [Bank 1] statements for account numbers [deleted] and [number] were provided in support of the claimed relationship to support the claim that the applicant and [Mr B] lived at [Address 1].  This was incorrect as forensic examination of the documents revealed that the correct registered address that is linked to those documents is not [Address 1].

8. In response to the NOICC, the applicant contended that she did not provide the bogus documents to the Department and that they were provided by [Mr C]. The applicant provided copies of emails to support her contentions.  The applicant claimed that [Mr C] did not keep her informed of the progress of the application or grant of the visa and that she did not sign or confirm the responses provided in the visa application.  She indicated that she had to create her own ImmiAccount to view her application.

9. The applicant has provided extensive submissions and explanations.  She gave evidence that her mother had purchased a property in Australia and paid a deposit but later experienced financial difficulties due to her business downturn in China, which meant that she did not have sufficient funds to finalise the purchase and settle on the property.  The applicant stated that [Mr C] approached her on the [social media] group and the applicant agreed to include [Mr B] as a de facto partner for payment of $60,000.  The applicant stated that she had no further contact with [Mr C] and never received the money.  She stated that a friend, [Ms A], whom she has known for many years, assisted her in giving her a loan.  The applicant stated that money was advanced by [Ms A] and that all transactions were conducted in China.  In oral evidence, [Ms A] confirmed the applicant’s version of events.  Post-hearing, the applicant provided evidence of loan repayments to [Ms A].

10. The Tribunal considers it harsh to impugn [Ms A]’s evidence on the basis of her close friendship with the applicant.  [Ms A] came across as being a credible and truthful witness and the Tribunal gives her evidence some weight. 

11. The applicant accepts that she agreed to include a dependent applicant in her Subclass 189 visa application as her de facto partner despite not being in a relationship with that person.  She did so for financial benefit; whether she received the funds or not is not entirely relevant.  She knew that an application would be lodged and that incorrect information would be provided.  The Tribunal has considered her explanations but given the seriousness of the conduct, the Tribunal gives this aspect weight in favour of cancellation.

    The present circumstances of the visa holder

12. The applicant is now [age] years of age.  She came to Australia on [date] March 2011 to undertake studies.  She has completed [qualifications].  She has worked as [occupation].  She is currently employed as a [occupation] at [employer] with a salary of $119,052 per annum. She has provided evidence of a recent pay review in February 2023, which led to the salary increasing to that amount.  Her employer provided character references for the applicant, speaking highly of the applicant’s skills.

13. The applicant has not worked in China and she gave evidence that she would encounter significant difficulties in finding employment in China due to the different [systems].  The applicant is a Hepatitis B carrier and she gave evidence that this would also have an adverse impact on her ability to find employment in China.

14. The applicant provided evidence, which the Tribunal accepts, that she suffers from mental health challenges, including moderate range depression and severe range anxiety and stress.  The applicant gave evidence, supported by corroborative material, that both she and her mother were victims of violence at the hands of the applicant’s father.  The applicant’s parents separated when she was [age] years old and her mother has now been granted a Subclass 820 Partner visa.  The applicant has contended that she has settled in Australia and has no one else left in China.  Her best friend, [Ms A], resides in Australia.

15. The applicant understands the seriousness of her conduct and takes responsibility for what occurred in the visa application.  During the hearing, the applicant showed genuine remorse for her wrongful conduct.

16. The applicant has bought a car for $26,000, in relation to which she has been making monthly loan repayments. 

17. On the evidence, the Tribunal is satisfied that the visa cancellation will impact the applicant’s career opportunities, her employer, her ability to repay the car loan, her mental health, her social network, and her emotional wellbeing.  The Tribunal is satisfied that if cancellation occurs, the applicant will experience significant hardship.  

18. The Tribunal gives this consideration significant weight against cancellation.

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

19. There is no evidence before the Tribunal of any conduct of concern by the applicant towards the Department. The applicant responded to the NOICC within the prescribed timeframe.  She has participated respectfully in the cancellation process.  She made admissions relating to the non-compliance, although she has denied any involvement in the bogus documents.

20. The Tribunal gives this consideration some weight against cancellation.

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

21. There is no evidence of any other instances of non-compliance by the applicant. 

22. The Tribunal gives this consideration weight against cancellation.

    The time that has elapsed since the non-compliance

23. The non-compliance occurred on 29 December 2016 when the applicant provided incorrect information in the visa application regarding the claimed de facto relationship with [Mr B] and bogus documents in support of this claim.

24. There is evidence before the Tribunal that the applicant has formed strong personal and significant employment ties to the Australian community.

25. The Tribunal gives this consideration weight against cancellation.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

26. There is no evidence before the Tribunal of any breach of the law.

27. The Tribunal gives this consideration weight against cancellation.

    Any contribution made by the holder to the community

28. The applicant provided substantial evidence of volunteer work and financial contributions to [named] Church and Red Cross.

29. The Tribunal gives this consideration weight against cancellation.

    Other considerations

30. 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 Procedures 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

31. There is no evidence of consequential cancellation under s 140.

32. The Tribunal gives this aspect neutral weight.

    Whether there are children whose interests would be affected by cancellation, or consequential cancellation (if so, decision-makers should consider the best interests of those children as a primary consideration)

33. There is no evidence of any children whose interest would be affected by the cancellation.

34. The Tribunal gives this aspect neutral weight.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations

35. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to several international instruments which give rise to non-refoulement obligations, being: the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol. ‘Non-refoulement obligations’ is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non‑refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

36. Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    ·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    ·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.

37. There is no evidence before the Tribunal that Australia would be in breach of its non-refoulement obligations nor has the applicant raised any claims about those matters.

38. The Tribunal gives this aspect neutral weight.

    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

39. If the visa is cancelled, the applicant will only be able to make limited further visa applications permissible under s 48 of the Act.  She could also be subject to a three year exclusion period under Public Interest Criterion 4013.  She could become an unlawful non-citizen and be liable to be detained under s 189 of the Act and removal under s 198 of the Act.

40. Although those consequences are legitimate lawful consequences, in her case and given her psychological challenges, the Tribunal gives this consideration some weight against cancellation.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

41. As mentioned earlier, on the evidence, the Tribunal is satisfied that the cancellation of the applicant’s visa would cause a significant degree of hardship, including financial, employment, emotional and psychological hardship.  The Tribunal gave this consideration weight against cancellation.

    CONCLUSIONS

42. 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.

43. The Tribunal has carefully considered the applicant’s circumstances and the breach of ss 101 and 103 of the Act. The Tribunal considers the applicant’s conduct to be serious; however, the cancellation scheme is not intended to be punitive, and the Tribunal is required to weigh up all the relevant considerations.  The Tribunal has considered the material before it individually and cumulatively. There are limited aspects in favour of cancellation, essentially relating to the breach. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of the applicant.  On balance, the Tribunal considers that the matters in favour of the applicant outweigh the aspects in favour of cancellation.

44. As such, the Tribunal concludes that the visa should not be cancelled.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Antoinette Younes
    Deputy President

    
    
    

    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.

    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.