Cai (Migration)

[2021] AATA 4474

Cai (Migration) [2021] AATA 4474 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuqi Cai

CASE NUMBER:  2109718

HOME AFFAIRS REFERENCE(S):          BCC2018/4154434

MEMBER:Kira Raif

DATE:3 November 2021

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 03 November 2021 at 12:41pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – incorrect information in the visa application – residential address fraudulently altered – de facto relationship ceased soon after visa grant – previous migration agent submitted bogus documents – relationship status did not affect via grant – employment – impact on employer – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 5(1), 98, 98, 101-105, 107, 109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4020; r 2.41

CASES

Gill v MIBP [2016] FCAFC 142
MIAC v Khadgi (2010) 190 FCR 248

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 (the Act).

2. The applicant is a national of China, born in June 1993. She was granted the Skilled visa in February 2018. In June 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 on 30 July 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 3 November 2021 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 by her registered migration agent. 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.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant made the application for the Skilled – Independent visa on 6 September 2017. The application included her claimed de facto partner Mr Jin Cheng Wang as a member of the family unit. The applicant submitted with her visa application a number of documents, including

   -statements from the Commonwealth bank for the period between January and June 2016 for a joint account, showing the name of the applicant and Mr Wang and addressed to them at their address at Drummoyne,

   -a number of Vodafone mobile phone bills in Mr Wang’s name, showing the address at Drummoyne,

   -a number of Vodafone mobile bills in the applicant’s name, showing the same address at Drummoyne, of the period between February 2016 and January 2017

10. The applicant was granted the Skilled visa on 14 February 2018 and Mr Wang was also granted the visa as the secondary applicant.

11. In July 2018 the Department carried out verification checks regarding the Vodafone bills sand the Commonwealth bank statements. The primary decision record indicates that a forensic examination undertaken by the Department showed that the residential address shown on the above documents did not match the residential address officially linked and registered to those documents. The delegate concluded that the documents had been altered in order to establish the applicant’s relationship with Mr Wang and that the above documents were bogus documents within the meaning of s. 5(1)(b) of the Act.

12. In her response to the NOICC the applicant states that after completing her study in Australia, she applied for the Temporary Graduate visa, which was granted in April 2016 and she approached a migration agent, Shiahang Nie who offered to prepare the visa application. Mr Nie told the applicant that her boyfriend Mr Wang could be included in the application and requested evidence of the relationship. The applicant states that in June 2017 she and Mr Wang returned to China and in September 2017 Mr Nie lodged the application on their behalf. The visa was granted in February 2018 and her relationship with Mr Wang ended in May 2018. The applicant submits that Mr Nie provided her with details used to lodge the application, including an email address created for that purpose but for which he had forgotten the password and she had no access to that email. The applicant states that she only provided true and original documents to Mr Nie and did not provide to the agent or to the Department joint bank statements or the phone bills showing the address in Drummoyne as she had not changed that address with the phone provider.

13. The applicant told the Tribunal that she and Mr Wang did have a de facto relationship from about April 2016 to about May 2018. The applicant states that Mr Wang spent most of the time with her at the Drummoyne address but he had also spent some time in his own apartment at Ultimo. The applicant states that their bills were sent to the Drummoyne address but she may not have updated her own address until 2016. The applicant confirmed that she and Mr Wang never had a joint bank account. She states that when they both travelled to China in 2017, they lived separately and their relationship changed and they also had a conflict about returning to Australia. their relationship was not the same after that and ended in 2018.

14. The applicant provided a submission and a large volume of documents to the Tribunal on the late evening of 2 November 2021. As the hearing in this case was scheduled for the morning of 3 November 2021, the Tribunal considers such late submission of documents and argument less than helpful. It is also not in compliance with the Tribunal’s Practice Directions. The applicant was represented by Ms Felice Chen of Kingstone Migration.

15. In her submission to the Tribunal the applicant states that Jincheng Wang was her boyfriend and she included him in her temporary subclass 485 visa before applying for the permanent visa. He introduced her to the migration agent, Mr Nie and engaged Mr Nie to apply for the Skilled visa. The applicant submits that she only provided genuine documents to the migration agent and did not see the documents provided with the application. She states that the email address used for the application was not hers and she had never had access to that address. The applicant claims that she relied on Mr Nie’s instructions and did not have reasons to doubt his integrity. The applicant states that  the agent acted without her knowledge or instructions by submitting bogus documents, including the relationship and parents’ statements, neither of which are signed. The applicant states that she did not read the content of the bogus documents before receiving the NOICC. The applicant states that  she would not have included her former boyfriend if she knew he would not qualify for the visa and he could have obtained another visa instead. The applicant notes that she had no intention to collude in the visa fraud as she would have obtained the visa irrespective of Mr Wang’s inclusion in her application. The applicant claims that she did not provide bogus documents.

16. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal is mindful that the applicant would have had the opportunity (and in the Tribunal’s view, the responsibility) to check the content of the application, including any supporting documents, before the application was lodged. The applicant claims that she trusted the agent who was able to obtain the temporary visa for her and did not check the documents. The applicant relies on Gill v MIBP [2016] FCAFC 142 and states that she had no intention to collude and is a victim of the ‘organised behaviour’. However, the Tribunal is of the view that the applicant had not taken adequate steps to ensure the content of her application was correct. That is, having instructed the agent to apply for the visa, the applicant was recklessly indifferent as to the agent’s actions.

17. The applicant’s evidence indicates that the applicant and Mr Wang did not have a joint account at the Commonwealth bank and that some of her own phone bills were not sent to the Drummoyne address. The Tribunal reasonably suspects that these documents which were submitted with the application are bogus documents because they had been altered by a person with no authority to do so. The Tribunal finds that the applicant gave, or caused bogus documents to be given to the Minister or the delegate. The Tribunal acknowledges the applicant’s submission that an agent prepared and submitted her visa application and that she only gave genuine documents to the agent. However, the Tribunal finds that under s. 98, the applicant is taken to have completed the application form, even if it was completed by the agent  and under s. 99, any information the applicant provided in supporting documents is taken to be an answer on the form. This includes information about her relationship with Mr Wang (the relationship statements) which the applicant claims are untrue. The Tribunal further finds that the bank records and phone bills are bogus documents because they had been altered by a person without authority.

18. 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?

19. 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).

20. 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 r.2.41 of the Regulations. They are:

    The correct information

21. This is not relevant in this case.

    The content of the genuine document (if any)

22. The primary decision record indicates that Mr Wang’s bank records and phone bills show that these were issued in his own name and not in joint names (as was noted on the bank statements submitted with the application). The applicant agrees that she and Mr Wang did not have a joint bank account. Further the primary decision record indicates that Mr Wang’s documents were addressed to an address at Ultimo and not at Drummoyne as the submitted documents showed. (The applicant’s evidence to the Tribunal is that Mr Wang’s phone bills were sent to Drummoyne but her own phone bills would show a different address which she failed to update). The applicant also told the Tribunal that the relationship statements were inaccurate and the signature on these were not genuine.

    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

23. The applicant claims in her evidence to the Tribunal that she was able to achieve the pass mark and the points in the EOT without relying on her boyfriend and her visa would have been granted whether or not  Mr Wang was included in the application. The Tribunal accepts that  this is so, however, the Tribunal is also mindful that if the decision-maker was aware of the bogus documents, the applicant may have been unable to meet PIC 4020. The Tribunal further finds that the decision to grant the visa to Mr Wang was based on bogus documents because it was based on a finding that Mr Wang was a de facto partner and a member of the family unit of the applicant who was the primary applicant and that finding relied on the evidence of the relationship such as phone bills and a joint bank account.

    The circumstances in which the non-compliance occurred

24. The applicant submits, essentially, that she provided genuine documents to her migration agent and that it was the agent who prepared the bogus documents without her knowledge or instructions. The applicant outlined in her evidence to the Tribunal the allocation of points and states that she would have been granted the points whether or not her boyfriend was included. The applicant states that she would not have included him if she was aware that  bogus documents were being submitted as she would not have jeopardised her application.

25. The Tribunal notes that the primary decision record indicates that no agent was appointed in relation to the Skilled visa application. The applicant also submits that the agent created an email address for the purpose of the application to which she had no access. The Tribunal finds that evidence problematic. As noted above, the Tribunal is of the view that the applicant had the responsibility to check the form and other papers submitted with her application, she would have seen the email address that was being used (and could have requested access to it) and would have also seen that no agent was nominated (which she would know was incorrect information, if her claims are to be accepted).

    The present circumstances of the visa holder

26. The applicant has been living and studying in Australia since 2013. She provided to the Tribunal evidence of her past and ongoing study in Australia and the Tribunal accepts that the applicant has completed study in the past and has recently commenced study towards an MBA, which she will complete in December 2022.

27. The applicant refers to the number of friendships she has formed in Australia and provided with her response to the NOICC several statements of support. The Tribunal accepts that  the applicant has formed social ties in Australia and has close friendships. The Tribunal also accepts that those who provided letters of support believe the applicant to be a good person.

28. The applicant refers to her employment as a casual professional staff at Monash University, which she commenced in July 2021 and claims that if her visa is cancelled and she has to leave her position, this may cause difficulties to herself and the project team. The applicant states that she considers Australia her home and intends to stay in Australia and develop her career. The Tribunal accepts that  evidence.

29. The applicant states that if her visa is cancelled, she may lose permission to work and study in Australia and the cancellation of the visa may cause extreme psychological hardship and disadvantage to her, by removing her opportunities. The Tribunal accepts that  evidence, although the Tribunal is also mindful that according to the primary decision record, the applicant has spent a lengthy period of time in China following the grant of her visa, which would suggest that the applicant is equally able to live and settle in China. Nevertheless, the Tribunal accepts the applicant’s evidence that at present, her preference is to remain in Australia and the applicant’s evidence to the Tribunal is that she has completed her project in China and no longer has any work commitments in China.

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

30. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act. The applicant states that  after becoming aware of the bogus documents, she promptly contacted Mr Wang and attempted to contact the agent. She provided truthful information to the Department.

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

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

    The time that has elapsed since the non-compliance

32. The application for the Skilled visa was made in September 2017 and a little over four years passed since the non-compliance. The Tribunal does not consider this to be a significant period of time.

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

33. There are no known breaches of the law.

    Any contribution made by the holder to the community.

34. The applicant presented several statements in support and the Tribunal accepts the applicant contributes through her social connections in this country. The applicant refers to her position as a research officer at Monash university. She spoke in oral evidence about her specific skills and explained how these would benefit Australia. The Tribunal accepts the applicant contributes through her employment and will be able to continue to do so, given her skills and experience. The applicant also states that she wants to help other international students.  

35. 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.

36. The visa held by Mr Wang would be cancelled under s. 140. The applicant’s evidence to the Tribunal is that Mr Wang is presently offshore but intends to operate a business in Australia in the future.

    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.

1. The applicant states there are no children whose interests 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.

2. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligation arise in this case. The applicant told the Tribunal that her uncle and cousin live in Australia but the Tribunal does not consider such connections give rise to family unity obligations. 

   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.

3. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although she may be subject to an exclusion period in relation to some visas and would have limited opportunities to make visa applications onshore. The cancellation of a permanent visa would result in the applicant losing some benefits that she may have been entitled to 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)

4. The applicant refers to her ongoing study and employment in Australia. The Tribunal accepts that if the cancellation of the visa will result in the applicant being required to leave Australia, this may affect her study and her employment and the applicant states that her ability to work for international companies would be affected. The Tribunal also accepts the applicant’s evidence that she would lose various opportunities that she has in this country if she does not hold a visa. The Tribunal acknowledges that the applicant has spent considerable time in Australia and appears to be settled in this country, having formed social and employment links. The Tribunal accepts that hardship would be caused to the applicant by the cancellation of the visa.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave bogus documents with her visa application and that there was non-compliance with s. 103 of the Act. The Tribunal has formed the view that there are grounds for cancelling the visa.

6. The applicant’s evidence is that she did have a relationship with Mr Wang and included him in her temporary visa application. In the Tribunal’s view, there is insufficient evidence to show that this relationship was never a genuine one or that  it did not exist. That is, this is not the case where the secondary applicant was included in the application and granted the visa to which he was not entitled. The applicant’s evidence is that she did have a relationship with Mr Wang and there is little before the Tribunal to contradict that evidence (nor was it undermined by the Department’s investigations). Notably, the NOICC only refers to the breach of s. 103 in relation to the phone bills and the bank statements, not to the breach of s. 101 in relation to the applicant’s answers concerning her relationship with Mr Wang.

7. There is evidence that the applicant did submit bogus documents with her application, being the bank statements and phone bills. The applicant also claims that the ‘relationship statements’ were untrue. The applicant submits that she was not aware of the submission of such evidence. In the Tribunal’s view, it is possible that the applicant was unaware of the submission of the bogus documents because the Tribunal acknowledges that there appears to have been a relationship between the applicant and Mr Wang and also the applicant’s evidence that she would not have wished to jeopardise years of study and residence in Australia, and the grant of the visa, by providing bogus documents in circumstances where the relationship did exist. Nevertheless, there is evidence that the records were altered and the Tribunal has formed the view that the applicant had the responsibility to check the content of her application and she failed to do so.

8. The Tribunal places considerable weight on the fact that  the applicant would have been granted the visa whether or not Mr Wang was included in the application and whether or not the delegate was aware of the bogus documents. It is also significant, in the Tribunal’s view, that neither the applicant nor Mr Wang obtained a benefit to which they were not entitled by the submission of bogus documents, because it appears that they did have a de facto relationship at the relevant time and the provision of bogus documents would have been superfluous.

9. The Tribunal has formed the view that the cancellation of the visa would cause hardship to the applicant, given her ongoing study and employment in Australia, as well as past study and future aspirations. The Tribunal acknowledges that the cancellation of the visa would lead to loss of opportunities for the applicant and negate many years of her study and settlement in Australia. The Tribunal finds that in the particular circumstances of this case, the hardship that would be caused to the applicant by the cancellation outweighs other considerations.

10. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

11. 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