Cai (Migration)

[2022] AATA 1822

Cai (Migration) [2022] AATA 1822 (31 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jialing Cai

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2111798

HOME AFFAIRS REFERENCE(S):          BCC2019/4944647

MEMBER:Kira Raif

DATE:31 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 31 March 2022 at 2:08pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa –had given incorrect answers in the application – applicant was unaware of the provision of bogus documents – some of the documents evidencing cohabitation were bogus documents – skills may be in short supply – applicant’s employment as a nurse, and a specialised nurse, is contributing to the community – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, Schedule 2, cl 482.212

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 visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in February 1992. She was granted the Skilled visa in October 2018. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in September 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by video on 29 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. 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?

7. 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 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made an application for the Skilled visa on 24 August 2017. The application included Mr Xiaoxu Yang as her de facto partner. The applicant completed the application form in which she stated that her de facto relationship with Mr Yang started in May 2016. The applicant referred to Mr Yang as her de facto partner and gave his personal details. The applicant also completed a declaration on the form that she had read and understood the information on the form and that the information was complete and correct in every detail.

9. The primary decision record indicates that in support of her de facto relationship with Mr Yang, the applicant provided a number of documents, including

   -Bank statements from Commonwealth bank, issued to the applicant and Mr Yang and addressed to an address in Strathfield, for the period from November 2016 to May 2017

   -Commonwealth bank record in the applicant’s own name, dated from July 2016 to January 2017, also addressed to the Strathfield address

   -Vodafone bills addressed to the applicant and, separately, to Mr Yang, at the Strathfield address, issued in early 2017.

10. The applicant and Mr Yang were granted the Skilled visas in October 2018. The primary decision record indicates that following the visa grant, a forensic examination was undertaken of the bank statements and phone bills and it was determined that the residential addresses on these documents did not match the residential addresses officially linked and registered to these documents. The delegate concluded that these documents had been altered by a person without authority and were bogus documents.

11. In her response to the NOICC the applicant claims that she relied on Mr Yang to prepare the application and Mr Yang appointed an agent. The applicant states that she envisaged marriage with Mr Yang and did not hesitate to include him in the application because she did not want him to leave Australia, which could lead to relationship break-down. The applicant claims that Mr Yang undertook to manage the application with the help of an agent and she regrets not checking it. She claims she provided only genuine documents and was unaware of the provision of bogus documents before receiving the NOICC.

12. The applicant also submits that the documents were provided without her knowledge or consent and there was third party fraud. She submits that in practice, she had no opportunity to check the documents that were prepared by the agent. In the Tribunal’s view, that is contrary to the principle in s. 98 which places the onus on a visa applicant, even if another person prepares the application or completes the form. In this case, the applicant did authorise Mr Yang (or the agent) to prepare the application and had engaged in the process. She took no steps (on her own evidence) to check the content of the form, thus showing indifference to the possibility of the fraud. The Tribunal has formed the view that the applicant was wilfully indifferent about the possibility of fraud and had not taken adequate steps to ensure the application contained correct and accurate information.

13. In her oral evidence to the Tribunal the applicant states that her Skilled visa application incorrectly stated that she and Mr Yang committed in February 2016 and in fact it was in March 2016. The applicant also states that they first lived at Paramatta before moving to Strathfield and this was also incorrectly recorded on the application. The applicant told the Tribunal that the de facto relationship started in May 2016 and ended around February 2019.

14. The Tribunal has considerable concerns about the nature of the applicant’s relationship with Mr Yang. The applicant claims to have been in a de facto relationship with him for over one year. However, there is very limited evidence before the Tribunal of that relationship. In February 2022 the Tribunal wrote to the applicant inviting her to provide evidence of that relationship. In particular, the Tribunal invited the applicant to provide evidence in relation to the social and financial aspects of the relationship, nature of the household and the nature of their commitment. In response, on 28 March 2022 the applicant provided to the Tribunal a single statement from a friend. (The applicant told the Tribunal her cousin also provided a statement earlier). The applicant told the Tribunal that her friends have returned to China but in the Tribunal’s view that does not explain why they were not able to provide statements. The applicant also stated that she did not want to disclose the nasty breakup to her friends but he did not have to disclose the breakup in order to request confirmation of the relationship itself. The applicant told the Tribunal that there were some documents addressed to both of them at the same address in the Department file, including the car registration which is significant. The Tribunal acknowledges that there are documents addressed to the same address that were provided to the delegate (and while some were found to be bogus, there is no evidence that all of these were bogus). However, living at the same address (even if that is established) is not sufficient to establish the existence of a de facto relationship. The applicant and Mr Yang could have lived together as partners, or they could have lived together as house-mates.

15. The applicant told the Tribunal that she did not declare the relationship on her tax returns at the time. She explains that she did not think she needed evidence for immigration purposes but declaring the relationship on a tax return has nothing to do with Immigration. The applicant would have been asked to declare her marital status when completing her tax return papers and did not mention her de facto status and that is also strong evidence that the applicant did not believe she was in a de facto relationship with Mr Yang.

16. There is no satisfactory evidence before the Tribunal that the applicant and Mr Yang shared their finances or shared day to day expenses or that they established joint assets and liabilities. The applicant’s evidence to the Tribunal is that they were students and there was no need for them to operate a joint account. The Tribunal is not satisfied they genuinely represented themselves to others as being in a de facto relationship (the applicant’s evidence is that she did not tell her parents about Mr Yang as they are not close and there is very limited evidence before the Tribunal from third parties). Even if the couple did live at the same address, there is no evidence that they established a joint household. In the Tribunal’s view, if there was a genuine de facto relationship between the applicant and Mr Yang, as is claimed, and that relationship had been in existence for close to three years as claimed, there would be more documentary evidence of it, including independent and contemporaneous evidence such as photographs and evidence of joint social activities, evidence of joint travel, purchases, nomination of partners on tax returns or superannuation records, many more statements from third parties including family members, financial records, etc. The applicant was unable to provide such evidence to the Tribunal.

17. The Tribunal is also concerned about the timing of the claimed relationship. The applicant claims to have commenced the relationship in May 2016, three months before the 12 months de facto relationship requirement that was relevant for visa purposes, and the relationship ended about four months after the visa was granted. The timing of the relationship is suggestive to the Tribunal that the relationship was arranged for the purpose of the visa. The applicant told the Tribunal that it may be that Mr Yang was using her for the visa and that also suggests that there was no mutual commitment to the relationship.

18. The applicant told the Tribunal that there was nothing for her to gain by including Mr Yang as she would have achieved sufficient points anyway but even if there was no benefit to her (and her evidence is that Mr Yang paid the application fee and the agent fees, even if the applicant claims the amounts were insignificant) that is not sufficient to establish the existence of the relationship. Neither is the fact that the applicant and Mr Yang are no longer in contact. The representative submits that this must indicate that they had a genuine relationship of some sort and had a bad breakdown but the fact that the relationship does not exist now, or that there is no contact between the parties now, is not evidence of the past de facto relationship.

19. The Tribunal acknowledges that the applicant may have provided additional evidence of the relationship in the Skilled visa application, resulting in Mr Yang being recognised as her de facto partner and the visa grant to him. However, for the reasons stated above, the Tribunal does not consider that the relationship was a de facto one. The Tribunal is mindful that at het time of the delegate’s decision, the delegate was not   aware that some of the documents evidencing cohabitation were bogus documents.

20. The Department’s investigations indicate that the bank records and phone bills had their addresses altered and the addresses on the documents presented with the application did not match with the addresses on the officially issued documents. The applicant’s evidence to the Tribunal is that they lived at a Parramatta address and did not move to Strathfield until later in 2017. The applicant concedes that they did not live at Strathfield during the periods shown on the submitted documents. Having regard to that evidence, the Tribunal finds that the Vodafone phone bills and the commonwealth bank records had been altered by a person with no authority and they are, therefore, bogus documents within the meaning of s. 5(b) of the Act.

21. The Tribunal finds that the applicant gave, presented or provided to an officer, an authorised system or the Minister bogus documents or caused such document to be so given, presented or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

    Should the visa be cancelled?

22. 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).

23. 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. They are:

    The correct information

24. This is not relevant in the present case.

    The content of the genuine document (if any)

25. Genuine documents would not have been issued to the applicant and Mr Yang at the same address at the time specified on the presented documents and would thus not evidence their cohabitation during the relevant period. The applicant told the Tribunal that there were other documents of the relationship that were submitted and that were not found to be fraudulent.

    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

26. The applicant submits in her response to the NOICC that she did not rely on partner points and would have been granted the visa whether or not she included the secondary applicant. The Tribunal accepts that this is true. However, having made the decision to include Mr Yang as her de facto partner, the operations of other provisions such as PIC 4020 becomes relevant.

27. It was a requirement for the grant of the Skilled visa that the applicant meets PIC 4020. The Tribunal has found that the applicant gave bogus documents with her application. If that information was known to the decision-maker, it may have affected the assessment of PIC 4020.

28. Thus, while the Tribunal accepts that it was not necessary for the applicant to rely on Mr Yang to be granted the visa, having decided to include him in the application means that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

29. These are outlined above. Essentially, the applicant submits that she did live with Mr Yang and had a de facto relationship for close to three years. The applicant states that  she had entrusted the preparation of her application to Mr Yang, who approached a migration agent. The applicant submits that she was too busy with work and did not check the content of the application, and had no access to Departmental systems. The applicant submits that she only gave genuine documents to Mr Yang and was unaware of the existence of bogus documents before receiving the NOICC. These matters are addressed above. Essentially, the Tribunal is concerned about the applicant’s failure to check the content of her application, even if she did not prepare the bogus documents herself. The applicant told the Tribunal that she was too young to understand her obligations. The Tribunal finds that evidence unconvincing. The applicant was mature enough to live independently in a new country, to complete a complex tertiary course and to work in an occupation that entails responsibility for the lives of others. She also had dealings with Immigration in the past when seeking other visas. The Tribunal does not accept that the applicant was too young or immature to understand her visa obligations.

    The present circumstances of the visa holder

30. In her response to the NOICC the applicant provided evidence of her professional registration as a nurse and evidence of her employment, including a statement from her employer, payslips and other material. She told the Tribunal she has been working at a hospital since 2018. The Tribunal accepts that the applicant has acquired registration as a nurse and has been employed in that occupation. The Tribunal also accepts the applicant has participated in various activities at work and outside of work.

31. The applicant states as a nurse specialising in dialysis, she has critical skills for which there is shortage and if her visa is cancelled, it would affect the availability of such critical service to the Australian community. The applicant states that it is a highly specialised area and it is hard to find experienced nurses. The Tribunal accepts that the applicant’s employment as a nurse, and a specialised nurse, is contributing to the community and also that her skills may be in short supply.

32. The applicant refers to the length of her stay in Australia, stating that she has lived in Australia since completing high school, for over ten years and is settled here. The applicant states that her friends, work colleagues and financial links are in Australia and not in China. The applicant states that she does not have a close relationship with her parents and would not live with them if she was to live in China, she could only live with her grandmother. The Tribunal accepts that evidence.

33. The applicant states that she cannot work as a nurse in China unless she obtains new qualifications and registration which would require 1-2 years of additional study and additional experience as her experience would not be recognised. The applicant states that  if she is to work as a nurse in China, she would have to start afresh. The Tribunal is prepared to accept that evidence.

34. The applicant states that she has no financial support in China and would experience discrimination due to her gender, age and marital status. She states that she would not get proper training because preference would be given to younger men and it would be hard for her to find  good jobs. The Tribunal found these claims to be entirely unsupported by any probative evidence and does not accept these. The application told the Tribunal that the income for nurses in China is not high and the nurses are required to work longer hours and there is a high nurse to patient ratio, unlike Australia.

35. The applicant states that it is not safe to travel during the pandemic. The Tribunal acknowledges that evidence (while being mindful that Australia’s borders have reopened to international travellers). The Tribunal is mindful that if the applicant is unable to leave Australia immediately (if that is the result of her visa being cancelled) she is able to seek a bridging visa on departure grounds and delay her departure.

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

1. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

2. There are no other known instances of non-compliance.

   The time that has elapsed since the non-compliance

3. The application was made in August 2017. Over four and a half years passed since the non-compliance. The Tribunal does not consider this to be a lengthy period.

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

4. There are no known breaches of the law.

   Any contribution made by the holder to the community.

5. The applicant provided evidence of her participation in various community and voluntary activities and fund-raising. The Tribunal accepts that evidence and accepts that the applicant has contributed to the community through voluntary activities, as well as her employment as a specialist nurse. The applicant spoke about the close relationship she has formed with her patients.

6. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s 140.

7. The visa held by Mr Yang may be subject to consequential cancellation. The applicant’s evidence to the Tribunal is that she has no knowledge of Mr Yang’s circumstances or whereabouts but believes he may be in China.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

8. There are no children who would be affected by the cancellation.

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

9. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or family unity obligations would be breached as a result of the cancellation. The applicant has no family in Australia.

   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.

10. If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. there is no suggestion she would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas she could validly apply for. The applicant may be subject to an exclusion period if she was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia.

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

11. These are addressed above. Essentially, the Tribunal accepts that the applicant would experience significant hardship if the visa is cancelled because it may lead to loss of employment and income and ties in Australia. The Tribunal acknowledges that the applicant may be unable to work as a nurse in China without further study or training or work experience and the applicant’s evidence is that she has no financial support to be able to do that. The Tribunal accepts that the applicant has formed some financial links in Australia (she provided in response to the NOICC evidence of a car purchase) and that she has strong social ties in Australia. The applicant told the Tribunal that she has a contract on her apartment and a car and it would be hard for her to leave. The applicant refers to her financial and social links in Australia and the absence of such links in China. As noted above, the Tribunal accepts that considerable hardship would be caused to the applicant if the visa is cancelled.

12. The applicant refers to the critical shortage of nurses in hospitals, particularly during covid, and in particular, nurses in specialised field like dialysis. The applicant refers to the statement of support her manager provided and the role she plays in her job. The applicant states that she has been working with the same hospital for a number of years and it is in the best interest of the hospital for her to remain. The Tribunal accepts that evidence.

13. The applicant states that if she was to return to China, her parents may be ashamed because of her age and she is unmarried. The representative submits that if the applicant’s visa is cancelled, it would be hard for her to obtain another visa and she may be unable to return to Australia for some time. The Tribunal acknowledges that this may be the case.

14. The Tribunal has fond that the applicant has not complied with s.103 of the Act and that there are grounds for cancelling her visa.  

15. The Tribunal considers that there are strong reasons why the visa should be cancelled. Significantly, the Tribunal has formed the view that the decision to grant the visa was based on incorrect information and there is a real chance that if it was known to the delegate, the applicant may not have been able to meet PIC 4020.

16. However, in the circumstances of this case, the Tribunal decided to give greater weight to other considerations. Most importantly, the Tribunal has formed the view that the applicant did have some sort of relationship with Mr Yang, even though the Tribunal has formed the view (for the reasons set out above) that it was not a de facto relationship within the meaning of the Regulations. That is, it is possible that the applicant did genuinely believe she could include Mr Yang in the visa application as her de facto partner. The Tribunal also accepts her evidence that she was not aware of the provision of bogus documents. The Tribunal has formed the view that the applicant failed in her responsibility to check the content of her application and in ensuring all information in it was correct and accurate but the Tribunal also acknowledges that there is no evidence of the applicant’s involvement in the fraud, nor of her knowledge of it. This is not the case where the applicant had deliberately provided incorrect information about her relationship or bogus documents about the relationship with the visa application. Rather, this is a case where the applicant had failed to take all reasonable steps to check the content of the application and provided bogus documents about the relationship in circumstances where she did genuinely consider herself to be in a relationship with Mr Yang. It is significant, in the Tribunal’s view, that there is no evidence that the applicant had engaged in any positive steps to perpetrate, or permit, the fraud.

17. The Tribunal places significant weight on the applicant’s contribution to the community. The Tribunal accepts her evidence that she works in a occupation for which there is a critical shortage and there is evidence before the Tribunal from the applicant’s employer confirming the importance of her contribution.

18. The Tribunal also places some weight on the fact that significant hardship would be caused to the applicant by the cancellation of the visa. This is because the applicant would be unable to work in her occupation (or related occupation) in China and would need to complete qualifications afresh before being able to work as a nurse. The Tribunal accepts the applicant has strong links to Australia and very few links in China. The Tribunal accepts that, for a variety of reasons, the cancellation of the visa would cause significant hardship to the applicant.

19. Having regard to all the circumstances of this case, the Tribunal decided to place greater weight on the factors that weigh against the cancellation.

20. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif

    Senior Member