Chen (Migration)

[2022] AATA 4683

Chen (Migration) [2022] AATA 4683 (21 December 2022)

1. DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Ms Meiqin Chen

   REPRESENTATIVE:  Mr Jia (Jack) Li

   CASE NUMBER:  2119982

   HOME AFFAIRS REFERENCE(S):          BCC2021/2035426

   MEMBER:Kira Raif

   DATE:21 December 2022

   PLACE OF DECISION:  Sydney

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

   Statement made on 21 December 2022 at 12:12pm

   CATCHWORDS

   MIGRATION – cancellation – Skilled Independent (Permanent) visa – Subclass 189 Skilled – Independent – incorrect answers in the visa application – no genuine and ongoing relationship – incorrect address – bogus documents – lengthy stay in Australia – registered business employing Australians – relationship with an Australian partner – employment – decision under review affirmed 

   LEGISLATION

   Migration Act 1958, ss 48, 101 – 105, 107, 109, 140
   Migration Regulations 1994, r 2.41

   CASES

   MIAC v Khadgi (2010) 190 FCR 248

   statement of decision and reasons

   Application for review

2. 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).

3. The applicant is a national of China, born in June 1990. She was granted the Skilled visa in March 2017. In November 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she did not comply with s. 101 and s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in December 2021. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 18 October 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 affirmed

   Relevant law

5. 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.

6. 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.

7. 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?

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 ss. 101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in September 2016 Mr Yulei Zhang made an application for the Skilled visa and included the applicant as a secondary applicant and his de facto partner. Mr Zhang claimed in the application that the de facto relationship with the applicant commenced in December 2014. Mr Zhang completed the application form in which he gave the applicant’s personal detail, also stating that the de facto relationship commenced on 17 December 2014. The applicant gave the residential address at Rhodes and stated that there was no authorised recipient associated with the application. the applicants declared that they had ready and understood the information on the form and that the information they provided was complete and correct.

10. In support of the claimed relationship, the following documents were included in the application:

    -An ANZ account statement in the name of Ms Chen, sent to the Rhodes address, dated 5 August 2016,

    -An ANZ account statement in Ms Chen’s name, also addressed to the Rhodes, address for the period from February to April 2016,

    -An ANZ account statement in Ms Chen’s name, addressed to the Rhodes address, for the period from February to April 2015.

    -A residential tenancy agreement for the Rhodes address, signed by the applicant and Mr Zhang in December 2014,

    -The applicant submitted a signed document called ‘love story’. In that document, the applicant stated that she and Mr Zhang first met in July 2014, became boyfriend and girlfriend and opened a joint bank account in November 2014. She stated that in December 2014 they moved into Mr Zhang’s apartment at Rhodes.

11. The applicant and Mr Zhang were granted the Skilled visas of 21 March 2017.  Following the visa grant, the Department conducted a forensic examination of the bank records which concluded that the addresses on the ANZ bank statements did not match the residential addresses officially linked and registered to these documents. The delegate concluded that these were bogus documents.

12. The primary decision record indicates that 

    -in February 2016 Mr Zhang applied for the temporary Skilled visa. In that application Mr Zhang stated that he was ‘never married’ and did not include any dependents in the application. Mr Zhang gave his address at Rhodes,

    -In February 2016 the applicant completed an Incoming Passenger Card (IPC) and gave her address at Liverpool Street, Sydney contrary to the information in the skilled visa application. That address at Liverpool Street was the address that was officially linked to one of the ANZ bank records that was submitted with the Skilled visa application,

    -According to PRISMS, the applicant updated her address to the Liverpool Street address in April 2015 and that was the address recorded by the applicant’s education provider. The applicant was a holder of a Student visa until September 2016 and was required to notify the education provider of her contact details (condition 8533).

13. The delegate concluded that the applicant lived at Liverpool street and did not live at Rhodes with Mr Zhang as claimed in her Skilled visa application. The delegate concluded that  the applicant was not in a genuine de facto relationship with Mr Zhang and provided incorrect information in the application.

14. In her response to the NOICC the applicant stated that at the time she was applying for the visa, she was referred to a migration agent who promised her to obtain permanent residence quickly and safely and she engaged the agent with a genuine intention to apply for the visa and provided genuine documents to the agent. She had not seen her application and the documents that were submitted with the application.

15. In her statement to the Tribunal of 17 October 2022 the applicant states that she came to Australia to study and before her visa was due to expire, she was exploring visa options and contacted an agent, who told her that  she could be added as a dependent on another person’s Skilled visa, which was safe and quick. The applicant states that she did not sign any contact with the agent and the agent did not explain the visa criteria but she thought the agent looked professional and another friend obtain the visa through the same agent.

16. In oral evidence to the Tribunal the applicant confirmed that she only met Mr Zhang once in order to take photos as instructed by the agent and she did not have a relationship with him. She also confirmed that she did not live at Rhodes.

17. The Tribunal finds, having regard to the applicant’s evidence, that the bank records had addresses altered and that these  had been altered by a person without authority. The Tribunal finds that the bank records are bogus documents. The Tribunal finds that  the lease agreement purportedly signed by the applicant and Mr Zhang for the Rhodes address had been altered by a person without authority and is also a bogus document. The Tribunal finds that the applicant gave, presented, produced or provided to an officer or the Minister, bogus documents or cause such documents to be so given, presented, produced or provided. The Tribunal finds that  the applicant did not comply with s. 103 of the Act.

18. Th Tribunal further finds, having regard to the applicant’s own evidence, that she did not have a de facto (or any other) relationship with Mr Zhang. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that  there was non-compliance with s. 101 of the Act.

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

    Should the visa be cancelled?

20. 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).

21. 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

22. The correct information is that  the applicant did not have a de facto relationship (or any relationship) with Mr Zhang and did not live with him at the same address. The applicant concedes that she never  had a relationship with Mr Zhang.

    The content of the genuine document (if any)

23. The genuine documents would not show the applicant and Mr Zhang living at the same address. The applicant concedes that she never lived with Mr Zhang and only met him once.

    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

24. The applicant sought the visa on the basis of meeting the secondary criteria as a de facto partner of Mr Zhang. There is no suggestion that she would have met the primary criteria or that she otherwise met the definition of the term ‘member of the family unit’. The only basis on which she was entitled to the visa is her de facto relationship with Mr Zhang.  However, the applicant’s own evidence is that the relationship did not exist. That is, if the correct information was known, the applicant would not have been entitled to the visa. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

25. In her response to the NOICC the applicant claims, essentially, that she approached an agent who promised her a quick and easy visa grant and she entrusted her application to the agent and did not know what was submitted on her behalf. The Tribunal does not accept the applicant’s evidence. In her evidence to the Tribunal the applicant also states that she trusted the agent who did not explain the visa criteria to her.

26. The Tribunal finds the applicant’s evidence unpersuasive. The applicant’s evidence is that  she explored visa options before seeing this agent and, importantly, she states that the agent did explain to her that she would seek the visa on the basis of being included in another person’s application as a dependent. In the Tribunal’s view, that  would have been sufficient to put the applicant on notice that her visa application was made on a fraudulent basis because she was well aware that she was not dependent of another person. Whether or not the agent explained the exact criteria for visa grant, and whether or not the applicant had signed the contract with the agent, the Tribunal finds, having regard to the applicant’s own evidence, that she was aware of the basis on which her application was made and she was aware that the claims made in her application were false. The Tribunal finds that the applicant had willingly engaged in the fraud and authorised the agent to perpetrate that fraud on her behalf.

27. In her submission to the Tribunal the applicant states that she provided only true documents to the agent and it was a shock to her that the application contained bogus documents. The Tribunal is prepared to accept that this may have been the case, but in the Tribunal’s view, that does not diminish the applicant’s culpability for engaging in fraud because she was aware that the very basis of her application was fraudulent, even if she was not personally involved in the preparation of bogus documents.

28. The applicant submits that she would not have allowed this to happen and would not have altered the documents and would not have permitted the agent to do it. The Tribunal does not accept the applicant’s evidence because the applicant was aware that her application was being made on a fraudulent basis and gave the go-ahead. The Tribunal thus does not accept that the applicant would not have permitted the fraud to go ahead.

    The present circumstances of the visa holder

29. in her response to the NOICC the applicant states that she has lived in Australia for over ten years and has settled her life in Australia. The applicant stated that she has two companies (she provided to the Tribunal evidence of the company’s registration and activities), employing Australian staff, and all her financial assets are in Australia. The applicant states that she had invested all her savings in the beauty salon business, which she has with another business partner. The Tribunal accepts that evidence.

30. The applicant submits that she has an Australian partner and all her social ties are in Australia. The Tribunal is prepared to accept that evidence and is mindful that the presence of an Australian partner may entitle the applicant to seek a Partner visa in the future.

31. In her evidence to the Tribunal the applicant refers to her study in Australia and her employment in the beauty industry. She refers to investing in her own company. The applicant states that her intention was to settle permanently in Australia where she has now lived for 14 years. The applicant states that her life is here, including her partner, her business and her friends.

32. The applicant refers to her business which employs two people. She states that her business partner is not involved and if she is to leave Australia, the others will not be able to handle the business, which is at a critical stage. She states that it is difficult to find someone to take over or manage the business (and her partner cannot do it) and they would have to pay a penalty for breaking the lease. The Tribunal is prepared to accept that evidence. The Tribunal is prepared to accept that if the applicant is to leave Australia as a result of her visa being cancelled (which is not necessarily a consequence of the cancellation), it may affect her business.

33. The applicant refers to her partner, stating that they have been together for about two years and plan to get married. The applicant states that her partner cannot relocate with her because he has a child in Australia and also due to his business commitments. The applicant states that they plan to get married and have a baby. There is before the Tribunal a statement from Mr Ng concerning the relationship, which the Tribunal accepts. The Tribunal acknowledges that evidence and is mindful that if the applicant is in a genuine relationship with an Australian partner, she may be eligible to seek a Partner visa in the future.

34. The applicant refers to the length of her stay in Australia and her links to Australia, including social and business and financial links. The Tribunal accepts that evidence.

35. The applicant states that  she has never worked in China and as a 30 year old woman, she states she will not be able to find employment there. These claims are entirely unsupported by any probative evidence. there is no evidence before the Tribunal to indicate that 30 year old females are unemployable in China or that the applicant’s particular skills and experience would not enable her to find a job in China. The applicant presented no evidence of having sought employment and of having been denied employment in China. In the circumstances, the Tribunal does not accept the applicant’s evidence that she would be unable to find a job in China.

36. The applicant refers to her parents’ poor health and states that she has not told them about the visa as she does not want to upset them and disappoint them. The applicant states that  if she goes back, they would probably scold her and blame her and even the neighbours will talk because it is shameful. The Tribunal is not convinced that the applicant’s neighbours would consider it shameful if the applicant was to return to China but even if that is the case, and even if the applicant’s parents would blame her and scold her, the Tribunal  is mindful that as an adult, the applicant is able to seek independent living (as she has done in Australia).

37. The applicant states that she abides by the Australian laws and regulations. there is no evidence that the applicant has not done so, with the exception of her non-compliance with the Migration laws (and the Tribunal is mindful that it is an offence under the Migration Act to claim to be in a relationship with someone when such a relationship does not exist). The Tribunal acknowledges that there is no evidence of the applicant being convicted of any offences.

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

38. 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

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

    The time that has elapsed since the non-compliance

40. The application was made in September 2016 and over six years passed since the non-compliance.

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

41. There are no known breaches of the law.

    Any contribution made by the holder to the community.

42. In her response to the NOICC the applicant provided evidence having made contributions to the Nan Tian Temple and of her volunteer activities at the Temple. in her evidence to the Tribunal the applicant refers to being a volunteer. The Tribunal accepts that the applicant has made a contribution to the community.

43. 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.

44. There are no persons whose visa would be subject to consequential cancellation.

    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 claims there are no children who would be affected by the cancellation of the visa.

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

2. The applicant does not claim, and there is no evidence before the Tribunal, that Australia’s non-refoulement obligations arise in this case. The applicant claims her partner is in Australia but the cancellation of the visa need not result (and unlikely to result) in the applicant having to leave Australia. the Tribunal does not consider that the family unity obligations would be breached by the cancellation.

   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 unless she is granted another visa, the applicant would become an unlawful non-citizen and could be detained and removed from Australia. there is no suggestion of indefinite detention. The applicant would have limited options of making other visa applications onshore due to operation of s. 48 and would be subject to an exclusion period in relation to some future visa applications. The applicant would also lose the entitlements she had acquired as a permanent resident of Australia and would not be eligible to the Australian citizenship if her visa is cancelled.

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

4. The applicant provided to the Tribunal a number of character references. The Tribunal acknowledges  that evidence. Notably , Ms Li states in her refence that there was a ‘misunderstanding’ when the agency submitted false materials. As noted above, even if the applicant did not herself engage in the provision of false documents, the Tribunal has formed the view that the applicant was well aware she was making the application on a false basis. It is not apparent that  the applicant informed Ms Li of the full circumstances of her case and of her own involvement in the fraud. Similarly Ms He in her statement refers to the provision of fake documents but not to the false claims made in the application that  the applicant was a dependent of another person. To that  extent, the Tribunal considers that character reference to be of limited value. Nevertheless, the Tribunal is prepared to accept that  her friends believe the applicant to be a good person.

5. The applicant refers to her ownership of a dog. She states that if she is to leave Australia, she would have to leave the dog due to China’s quarantine policy. She states that it would be unbearable for her. The Tribunal is prepared to accept that  evidence although, as noted above, the Tribunal is mindful that the cancellation of the visa does not equate to the applicant having to depart Australia.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with ss. 101 and 103 of the Act because she answered the questions on the form concerning her relationship with the primary applicant in a way that incorrect answers were given or provided, and also because the application contained bogus documents. The Tribunal has found that the ground for cancellation is made out.

7. In considering whether or not the visa should  be cancelled, the Tribunal acknowledges that the cancellation of the visa would cause hardship to the applicant and others, given the length of her stay in Australia, her business and personal links (noting, in particular the applicant’s evidence about the difficulties in running the business and her relationship with an Australian resident), her ownership of the dog and her desire to marry and have children. The Tribunal also accepts the applicant’s evidence that her parents would be upset by the visa issues. All these factors weigh against the cancellation.

8. Notably, the applicant’s evidence to the Tribunal is that she intends to apply for a Partner visa onshore if her visa is cancelled. That is, the applicant is unlikely to leave Australia irrespective of the outcome of this review. In these circumstances, the Tribunal considers that the hardship caused by the cancellation would be significantly diminished if the applicant is able to remain in Australia, continue with her business, continue the relationship and maintain her connection to this country. While the Tribunal acknowledges the cost, delay and uncertainty associated with the visa application process, the Tribunal finds that the opportunity of seeking another visa in Australia (and the applicant’s intention of seeking that visa) will significantly reduce the hardship that would be caused by the cancellation of the Skilled visa.

9. The Tribunal decided to place greatest weight on the circumstances in which the ground for cancellation arose and the fact that the visa grant was based on the incorrect information  and bogus documents. The applicant admits that she never had a relationship with Mr Zhang and only met him once. The applicant claims she was too young and the agent failed to explain to her the meaning of de facto but the Tribunal does not accept that because her evidence is that the agent did tell her she was applying on the basis of her relationship with Mr Zhang (however that relationship was defined) and the applicant knew she did not have a relationship with him. She was also told she had to take photographs to pretend to be in a relationship which she knew did not exist. The Tribunal has formed the view that the applicant had willingly engaged in fraud and she was well aware of it and had a full understanding of what was being done. This weighs heavily in favour of the cancellation.

10. The Tribunal also gives significant weight to the fact that the applicant was not entitled to the visa which she was granted. The only reason the applicant was granted the Skilled visa was her relationship with Mr Zhang, which did not exist. In the Tribunal’s view, that also weighs heavily in favour of the cancellation. The Tribunal finds that these factors outweigh other considerations.

11. 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

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif
    Senior Member