2519912 (Migration) - [2025] ARTA 1744

2519912 (MIGRATION) [2025] ARTA 1744 (15 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2519912
Tribunal:Senior Member M Bourke
Place:Melbourne
Date:  15 July 2025

Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 15 July 2025 at 10:10am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – bogus documents provided with previous visitor visa application – marriage certificate and household registration naming husband and daughter – divorced at the time, with no daughter – documents provided by agent without applicant’s knowledge – non-compliance conceded – discretion to cancel visa – lack of knowledge of procedures, reliance on friend’s advice and no direct contact with agent – existence of non-travelling family members relevant to genuine temporary entrant – implausible that agent would substitute bogus documents without instructions – time elapsed – now divorced from sponsor and living with student visa-holder adult son – business with one part-time employee – comparative financial difficulties or hardship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 103, 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had provided bogus documents with a visitor visa lodged on 31 July 2017, and therefore had not complied with s.103 of the Act. S.107A of the Act provides that non compliance that constitutes a ground for cancellation of a visa includes non compliance in respect of any previous visa held by the person. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 10 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from a witness [Mr A]. The applicant was supported by three persons, including her son, who attended the hearing with her. The applicant clarified with the tribunal at the commencement of the hearing that these three persons would not be giving evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 in the following respects: in support of the applicant’s application for a visitor visa lodged 31 July 2017, the applicant provided bogus documents, including a copy of an untranslated marriage certificate issued [in] April 2003 recording her spouse [Mr B], date of birth [Date] with a Chinese national identity card number and a copy of an untranslated household registration dated [September] 2014 recording the applicant’s spouse [Mr B], date of birth [Date], his Chinese national identity card number (the same as on the marriage certificate) and a daughter [Ms C] date of birth [Date] and her Chinese national identity card number.
The applicant provided a written response to the notice of intention to consider cancellation under s.109 of the Act to the Department dated 23 February 2025. The applicant provided oral evidence in the hearing which was consistent with the written response provided to the Department.
The applicant states that she was not aware of the bogus documents provided with her application for the visitor visa. The applicant states the bogus documents were provided with her application for the visitor visa by an agent engaged online by her friend [Mr A]. The applicant states she gave her passport, her household registration, her national identity card, her photo identification and bank or asset information as well as payment to [Mr A], and he transferred this information to the online agent on her behalf.
The applicant states that she agrees that the documents are bogus. The applicant states that she was divorced from her husband [Mr B] in 1999, so any marriage certificate issued in 2003 must be bogus. The applicant states that she does not have a daughter so any household registration recording she has a daughter must be bogus. The applicant states that when she applied for the visitor visa her household registration should have correctly recorded her divorced status. The applicant states that she has a son, but he was not residing with her in China and would not have been recorded as living in her household at the time of the application for the visitor visa.
I am satisfied based on the evidence of the applicant that the documents attached to her application for the visitor visa are bogus documents within the meaning of s.5(1) of the Act. I am satisfied that the bogus documents are documents that the Minister reasonably suspects purport to have been, but were not, issued in respect of the applicant. I am satisfied that the untranslated copy of the marriage certificate contained the name of the applicant’s ex-spouse with an incorrect date of birth and false national identity card number and the certificate was issued after the applicant and her ex-husband had divorced. I am satisfied that this is a nongenuine document. I am satisfied the untranslated copy of the household registration [dated] September 2014 contained the names of the applicant’s ex-spouse with an incorrect date of birth and false national identity card number, and a fictional child with a false date of birth and false national identity card number.
I am satisfied the nongenuine copy of the marriage certificate issued [in] April 2003 purports to record the applicant was married at the time of the application for the visitor visa. I am satisfied the untranslated copy of the household registration purports to record the applicant resided with family members at the time of application for the visitor visa. I am satisfied that neither the marriage certificate or the household registration was legally issued in respect of the applicant. I am satisfied that both documents are bogus documents.
It is not sufficient for the applicant to state that she had no knowledge of the documents provided with her application for the visa by an agent arranged by her friend. I must assess whether this is a credible explanation of the circumstances surrounding the application for the visitor visa. It is relevant for me to consider whether the applicant had any knowledge or involvement in the process for the application for the visitor visa, and the documents provided in support of the application for the visitor visa. I questioned and discussed with the applicant and her witness in the hearing whether it was credible that the applicant and her friend had no knowledge or involvement in the bogus documents that were provided with the application for the visa.
I accept the applicant provided documents and relevant information and payment to her friend [Mr A], who then passed the information, documents and payment to the agent who lodged the application for the visitor visa on the applicant’s behalf. In the course of this transactions between the applicant, [Mr A] and the agent bogus documents which recorded the applicant was married with an [age] year old daughter were submitted in support of the visitor visa application.
I am satisfied that the applicant has given, presented, produced or provided to an officer, an authorised system, or the Minister, a bogus document, or caused such a document to be so given, presented, produced or provided, with the application for the visitor visa lodged 31 July 2017.
Accordingly I am satisfied that there has been non-compliance as set out in the s.107 notice, and the applicant has provided bogus documents with the application for the visitor visa lodged 31 July 2017, and therefore has not complied with s.103 of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) as follows:
·     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.
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. This is set out in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information: – the correct information is that at the time of application for the visitor visa, the applicant was not married, and did not have a daughter aged approximately [age]. She did not have non-migrating family members as an incentive to return to China. This is a relevant consideration for a visa which has criteria that a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. I give this consideration weight in favour of cancellation of the visa.
The content of the genuine document (if any): – the genuine documents were provided by the applicant in support of her partner visa lodged 23 March 2018, and included a copy of her divorce certificate issued in China [dated] 8 December 2017 which recorded the divorce was registered [in] March 1991. The divorce certificate recorded the applicant’s ex-spouse as [Mr B], his date of birth as [Date], and his correct national identity card number. Further the applicant provided a copy of her household registration registered [in] November 2017 providing her name, date of birth and her national identity card number. This document was issued [in] January 2018. These documents are recorded in the Department’s decision record to be found to be genuine. These documents establish that at the time of the application for the visitor visa, the applicant was divorced, did not have a daughter aged approximately [age], and lived on her own. I give this consideration weight in favour of cancellation of the visa.
Whether the decision to grant the visa was based wholly or partly on the incorrect information or bogus document: – I am satisfied that the bogus documents which fraudulently alleged the applicant had nonmigrating family members was relevant information for the decision-maker in granting visitor visa. The bogus documents that claimed the applicant was married and had an [age]-year-old daughter would have been relevant factors in the decision to grant the visa. I am satisfied that the decision to grant the visa was based partly on the incorrect information in the bogus documents. I give this consideration weight in favour of cancellation of the visa.
The circumstances in which the non-compliance occurred: – the applicant states that she discussed her wish to travel with her friend [Mr A], and that he advised her he knew of someone who could lodge the application for her online. The witness [Mr A] gave evidence that confirmed the applicant’s statement. The applicant gave evidence to the Tribunal that at the time of the application for the visitor visa she had limited access or experience with the Internet or with email, and had little education, which is why she relied on her friend to assist her. The applicant states that she gave her personal documents to [Mr A], including a copy of her passport, her national identity card, her household registration, her photo identity and her bank and asset information. [Mr A] gave evidence that he made scanned copies of these listed documents and returned them to her. The applicant and [Mr A] both stated that the information and the payment was provided to the online agent, and they had no involvement in the bogus documents being provided with the application for the visitor visa. The applicant states she had no knowledge that bogus documents were provided with her application for the visitor visa, until she was advised by the Department in the notice of intention to consider cancellation of the visa. The applicant states she does not know the name or contact details for the agent who provided the bogus documents. The applicant states she did not give any instructions to the agent in relation to the application for the visitor visa. [Mr A] gave evidence that he cannot remember the name of the agent, and is unable to provide the contact details for the agent. The witness states that he did not provide any instructions to the agent other than to apply for the visa. Both the applicant and the witness claim the provision of the bogus documents was not their responsibility, and not done at their request. I discussed with the applicant that I did not find it plausible that an agent who was provided with genuine documents for an application for a visitor visa would substitute them with bogus documents in the absence of any instructions to do so.
I discussed with that the applicant and the witness that they have not been forthcoming in providing the name or contact details or the online search enquiry details in relation to the agent who provided the bogus documents. I discussed with the applicant and the witness in the hearing that they appeared to be hiding behind their statements that the entire fault was that of the agent and they had no engagement or involvement in the provision of the bogus documents. After the hearing the applicant provided the tribunal with the agent’s website screenshot with an English translation, based on the email address on the notification of the grant of the visitor visa.
I am not satisfied that either the applicant or her friend [Mr A] did not instruct the agent to take extra steps in making the application for the visa. I am not satisfied on my assessment of the evidence that the applicant and/or the witness have no knowledge of the provision of the bogus documents with the application for the visa. For these reasons I give the circumstances in which the non-compliance occurred weight in favour of cancellation of the visa.
The present circumstances of the applicant: – I am satisfied based on the evidence of the applicant that she married the person who sponsored her for the subclass 820 and 801 partner visa on 20 January 2018 and lodged the partner visas in March 2018. I am satisfied that the applicant and her sponsor separated on 1 June 2023 and their divorce order was granted on [Date]. The applicant stated that she is still in contact with the sponsor and that he has recently asked her to provide some care for him. There was no evidence, oral or written, before the Tribunal, from the sponsor. I am satisfied that the applicant and the sponsor are divorced. The oral evidence of the applicant indicates that she has ongoing contact with the sponsor but not that there is any ongoing relationship between the applicant and the sponsor. There is no evidence before the tribunal that at the time of this decision the sponsor is dependent upon the applicant for ongoing support or care.
I am satisfied that the applicant purchased a home in December 2024 which is subject to a mortgage, and she has equity in the home in excess of $200,000. The applicant stated that if she had to sell the home she thinks she would experience some financial loss in the sale of the home. The applicant stated that she has been told the house prices have reduced since she purchased the home seven months ago, but she is not sure. The applicant stated she lives in her four-bedroom home with her son who is in Australia as the holder of a student visa. The applicant stated her son is not contributing to the expenses of the household, and sometimes he has a part-time job. The applicant stated she has offered for her ex-husband to live in the home she has purchased but he is not living there currently. I am satisfied the applicant runs a massage business, and has one part-time employee who works either two or three days a week. The applicant was unable to tell the tribunal the earnings of the business, but outlined the expenses included rent, utility bills, her part-time employee’s wages and her taxes. I give the consideration of the present circumstances of the applicant weight in favour against cancellation of the visa.
The subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act: – I am satisfied the applicant has not made any attempt at any time to notify the Department of the bogus documents provided with the application for the visa. The applicant has consistently maintained she had no knowledge that bogus documents were provided with the application for the visa. The applicant stated she is unable to provide any information as to the contact details or name or business name of the agent who provided the application for the visitor visa, but I accept that after the hearing the applicant provided the website address for this agent. The applicant told the Tribunal in the hearing that pursuant to her analysis of the documents she had received from the Department under an FOI claim there were further bogus documents provided with the application for the visa, including a work certificate and a wage certificate. I give this consideration weight in favour against cancellation of the visa.

Any other instances of non-compliance by the applicant: – I am satisfied there is no other evidence before the Tribunal indicating there were any other instances of non-compliance by the applicant. I give this consideration weight in favour against cancellation of the visa.
The time that has elapsed since the non-compliance: – I am satisfied it is nearly 8 years since the non-compliance occurred, involving the bogus documents being provided with the application for the visitor visa on 31 July 2017. I give this consideration weight in favour against cancellation of the visa.
Any breaches of the law since the non-compliance: – I am satisfied there is no evidence before the Tribunal indicating there has been any breach of the law committed by the applicant since the non-compliance. I give this consideration weight in favour against cancellation of the visa.
Any contribution made by the applicant to the community: – I accept the applicant made a $50 donation in 2018 to a bushfire relief fund. I accept the applicant’s evidence that she is not involved in any community or church organisation. I accept the applicant is employed and pays taxes. I give this consideration weight in favour against cancellation of the visa.
Consequential cancellations: – there is no evidence before the Tribunal that the visa of any other person would be cancelled pursuant to s.140 of the Act as a result of the cancellation of the applicant’s visa. I give this consideration neutral weight neither in favour for nor against cancellation of the visa.
Australia’s international obligations: – I am satisfied that there would be no breach of Australia’s international obligations if the applicant’s visa was cancelled. The applicant has not made any claim that she would experience persecution or harm if she was required to return to China, and I am therefore satisfied there would be no breach of Australia’s non-refoulement obligations. There is no evidence before the Tribunal that there is any minor child of the applicant, whose interests would be affected by the cancellation of the applicant’s visa. I am satisfied that the applicant has a [Age]-year-old son who is independently in Australia as the holder of a student visa. I give this consideration neutral weight, neither in favour for nor against cancellation of the visa.
Mandatory legal consequences: – I am satisfied that if the applicant’s visa was cancelled there is the possibility that the applicant could be detained, or deported, if she did not make other arrangements for a visa or to depart Australia. The applicant would be subject to limitations in relation to future applications for visas and exclusion periods pursuant to the requirements of s.48 of the Act and PIC 4013. I note from the Department’s decision record that there is a pending matter involving a sponsorship by the applicant of her son for a remaining relative visa. The applicant would not be able to continue with this sponsorship if her visa was cancelled. I give these considerations weight in favour against cancellation of the visa.
Other relevant matters: – I am satisfied that the applicant is concerned she will experience financial and economic hardship if she has to depart Australia. The applicant stated that she has seven surviving siblings in China, but due to their own poor economic conditions she does not think she could live with her siblings and their families. The applicant stated that due to her age she does not think she would be able to find employment in China. The applicant stated that in China she does not have health insurance and would have to pay for any medical care. I am satisfied that the applicant would find things comparatively more difficult financially if she returned to China. I am satisfied that the applicant would have some financial funds after the sale of her property in Australia. I am satisfied based on the evidence of the applicant that she would still experience comparative financial difficulties or hardship if her visa was cancelled and she was required to depart Australia. I give this consideration weight in favour against cancellation of the visa.
Conclusion
The Tribunal has carefully considered the prescribed matters under reg 2.41, and other circumstances relevant to the exercise of the discretion as to whether the visa should be cancelled. I have carefully considered the evidence of the applicant, the information provided to the Tribunal and the evidence of the witness. After assessment and analysis of all the evidence and the circumstances to be considered, I give the most weight to the factors of the correct information, the content of the genuine document (if any), whether the decision to grant the visa was based wholly or partly on the incorrect information or bogus document, and the circumstances in which the non-compliance occurred. I assess that the weight I attribute to these considerations, factors and circumstances outweighs the weight that I give to the other considerations, factors and circumstances. Accordingly, I am satisfied that the applicant’s visa should be cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Dates of hearing(s):  10 July 2025

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 ART, 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, or the ART, 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 [written]# notice:
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
[(1C)The notice under subsection (1) must be given in the prescribed way. ]#
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
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