Chen (Migration)

Chen (Migration) [2022] AATA 4910 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hongmei Chen
REPRESENTATIVE:  Mr John Chen (MARN: 0101286)
CASE NUMBER:  2108716
HOME AFFAIRS REFERENCE(S):          BCC2021/524401
MEMBER:Michael Bradford
DATE:9 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 590 (Student Guardian) visa.

Statement made on 09 December 2022 at 4:24pm

CATCHWORDS
MIGRATION – cancellation – Subclass 590 (Student Guardian) –applicant provided incorrect answers – provision of incorrect information relating to the identity of her then de facto partner – Birth Certificates submitted were bogus– credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109,375
Migration Regulations 1994 (Cth), rr 2.41, 2.43

application for review
Background

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 590 (Student Guardian) visa under s 109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act. The 101(b) ground was based on the provision of incorrect information in her Visa Application (VA) relating to the identity of her then de facto partner. The information is contained in the section of the VA which deals with non-accompanying members of her family unit where the applicant identified him as Xinming Zhou who was born on 12 May 1974 and was the holder of a Chinese National Identity (CNI) card which appeared to confirm that he was born in that year. The 103 ground was based on the submission by the applicant of Birth Certificates for their two children, namely Jingjing Zhou and Yiming Zhou. Each of the Birth Certificates named her partner as the father of her children and included as identifying features the same CNI number for him as was provided by her in the VA.
In the review the applicant does not dispute that the information concerning her partner’s identity provided in the VA was incorrect and that the Birth Certificates submitted to support the VA were bogus.
Jingjing Zhou was born on 15 September 2002 and Yiming Zhou was born on 10 February 2005. For the sake of convenience, and without intending any disrespect, I will refer to them by their given names.
According to the applicant she had commenced a de facto relationship with Zhou in or about 2001. There is also evidence from Jingjing that the relationship came to an end in 2020. There is also anecdotal evidence that Zhou was, during his relationship with the applicant, married to another woman.
The VA was filed offshore on 27 September 2017. In the VA the applicant nominated each of her children as intending students in Australia and each of them filed an application for a Subclass TU-500 (Student) visa on that date. Each of them identified their father as Mingxin Zhou and gave for him the same identifying details as were provided by the applicant in her VA. Each of them also provided as supporting evidence a copy of their Birth Certificate, these documents being in the same terms as those which the applicant had submitted to support the VA.
The delegate found, and the applicant has not disputed, that the information and Birth Certificates led to the grant of the subject visa to her on 11 October 2017 and that same information and documents led to the grant of Student (subclass 500) visas to both Jingjing and Yiming in November of that year.
The applicant’s visa was cancelled on 29 June 2021 after she had responded to the Notice of Intention to Consider Cancellation (NOICC). In the response she did not dispute the non-compliances but maintained that neither she nor her children were aware that the relevant information in the VA was incorrect and that they at all times believed that the Birth Certificates were genuine documents.
The delegate cancelled Yiming’s visa on the same date and on the same grounds as the applicant’s visa but, in March 2021, declined to cancel Jingjing’s visa.
Yiming has also sought a review of the decision to cancel her visa.
For the reasons which follow, I have decided that the delegate’s decision to cancel the applicant’s visa should be affirmed but his decision to cancel Yiming’s visa should be set aside.
I will deliver separate reasons in Yiming’s case shortly.
The Review Application was filed by the applicant on 5 July 2021 and is within time.
Overview of the statutory provisions and the issues to be determined in the review
Sec 109 of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with Secs 101(b) and/or 103 of the Act. Relevantly these sections require a non-citizen to provide correct information in a visa application and not to provide a bogus document in support of a visa application. A bogus document is defined in Sec 5 of the Act to be a document which the Minister reasonably suspects to be counterfeit or altered by a person who has no authority to do so or was obtained because of a false or misleading statement, whether made knowingly or not. As is well known, Sec 100 of the Act complements paragraph (c) of that definition by making it perfectly clear that if information is incorrect it does not matter whether the person who provided it knew that it was incorrect.
The exercise of the cancellation power under Sec 109 is conditional on the Minister issuing a valid notice to an applicant under Sec 107 of the Act. A valid notice must contain sufficient particulars of the alleged non-compliance to enable an applicant to know what he or she is alleged to have done and to know in what way or ways that has given rise to the non-compliance. Where a notice is issued that does not meet this requirement the power to cancel a visa does not arise.
There is no dispute that the NOICC in this case complied with these formal requirements and was a valid notice under Sec 107 of the Act. Certainly, there has been no submission in the review to the contrary and none was made to the delegate prior to the cancellation.
The hearing, and general concerns
On 21 September of this year the Tribunal conducted a combined telephone hearing of the review cases brought by the applicant and Yiming. The hearing of the two cases occupied a little more than 2 hours.
The applicant gave most of her oral evidence through a Mandarin interpreter over a period of about 90 minutes. An agent, Mr John Chen from Australia Asia Consultancy (no relation, apparently), was present at the hearing as was her current de facto partner, a Mr Gary Lawrence, who also gave evidence in support of her case.
The applicant was very emotional at times when giving evidence. She became quite distressed at one stage, was given the opportunity to take a break but declined it and went on to complete her oral evidence. Mr Lawrence had an unfortunate tendency, despite warnings from me, to answer questions which were obviously directed to her and not to him. Although perhaps well-intentioned, his interjections were counter-intuitive and ultimately quite unhelpful. The fact that he had no independent knowledge of the circumstances in which the non-compliances occurred served only to exacerbate the problem.
Leaving aside those troubling aspects, the applicant struck me as a resilient individual who was determined to do what she could to advance her case and enhance the prospects of her children remaining in Australia to complete their education. I formed the impression that she was quite intelligent and well versed, that she was telling me only what she wanted me to know and was prepared to say whatever she, or Mr Lawrence, thought would assist her case.
Much of the evidence in her case is misconceived in that it focuses on the circumstances in which the Birth Certificates were issued by the Chinese authorities and what she did with these documents in later years rather than on the circumstances which existed at the time the VA was filed and in explaining how the information and documents came to be provided to the Department without her knowledge or approval.
There are also aspects of her oral evidence which I find quite contrived, particularly her attempts to distance herself from her own translated documents including those provided by her in response to the NOICC and to support the review.
Another concern stems from her belated disclosure that she had two other Birth Certificates in her possession, one for each of her children, which had not previously been provided or made the subject of any evidence. Having been told about them during her evidence I asked the agent to provide a copy of these documents to the Tribunal which he did shortly after the hearing, along with English translations. I will return to have a closer look at them later in these reasons but note at this stage that the applicant has given to me no meaningful evidence to explain how these other Birth Certificates were obtained, for what purpose they were procured, how and when she came into possession of them and why they contain different details, including issue dates, to those provided in support of the VA.
The applicant’s review case has other unsatisfactory features not the least of which stems from what I perceive to be a reluctance on her part to come forward with a full and frank account of the circumstances in which the non-compliances occurred. It may well be that Zhou has much to answer for, as she in effect contends, but I do not accept her claim that she remained unaware of what had been done to procure her and her children’s visas until she was served with the NOICC.
Ultimately, these deficiencies in her evidence undermine her credit and do nothing to enhance the general merits of her review case. Indeed, left unexplained, they warrant the drawing of an inference that the evidence which she could have given about the circumstances in which the non-compliances occurred would not have assisted her case.
This case is a timely reminder of the forensic realities which confront many review applicants in the Tribunal who, for reasons best known to themselves, withhold evidence on critical aspects.
The Tribunal is in these circumstances under no general obligation to investigate aspects of a review case which an applicant has left unexplained or given only vague or imprecise evidence about.
Other documentary aspects
In her Hearing Acceptance form dated 7 September 2022 the applicant indicated that she intended to rely on certain documents, namely a statement, the letter of explanation which she had provided to the delegate (the Explain Letter), and other material. In addition, and although not referred to in the Hearing Acceptance form, she also provided a statement from Jingjing dated 12 September 2022, a document which at least in some respects does not assist her case.
In addition to the applicant’s documentary case the Tribunal has been provided with a large physical file from the Department which contains a good deal of relevant information. Although a Sec 375A certificate has been issued by the Department, and although she does not at least on one view dispute the non-compliance, the Tribunal will need to consider some of this material and, to that end, identify the documents and describe the information in them to the extent to which it is necessary.
The substance of the vast bulk of this information, or at least relevant parts of it, was put to the applicant in the NOICC, in the decision under review and at the hearing in the Tribunal and was not controversial.
Apart from the VA the Department’s file includes internal memoranda and communications with the Investigations Unit, the NOICC, the applicant’s translated response to the NOICC in the form of her Explain Letter dated 12 May 2021, and of course the decision under review.
The Tribunal has also had access to a Movements Details record for her the information in which was consistent with the other documents in her case.
The first issue; has there been non-compliance with Sec 103 and/or Sec 101(b) in the ways articulated in the NOICC?
The Department’s file confirms that it conducted an extensive investigation into the correctness of the relevant information in the VA and the authenticity of the Birth Certificates before issuing the NOICC. This involved, among other things, gathering information from various apparently reliable sources in China, the effect of which is set out in the NOICC.
Checks were conducted with the Maternity and Child Health Care Institute of Neijing City revealed that the Birth Certificates which the applicant had provided to support the VA were not authentic documents.
Another check which the Department conducted with the Population Group of Shibei Branch Office, Qingdao Public and Security Bureau revealed that the CNI card number given in the VA for her former partner was not recognised on their systems.
Pertinent information was obtained by the Department from its own internal records. For example, in January 2020 when the applicant’s daughters had applied for Child (subclass 802) visas they were sponsored by a person whom they identified as Xin Min Zhou born 12 May 1954. Apparently, this person had provided DNA test results confirming that he was their biological father.
Other material revealed that, in 2007, Zhou had applied for a permanent visa to enter Australia in support of which he had provided a CNI card number 370204195405123512 (the delegate’s emphasis, 1954 indicating his actual year of birth). Another check which the Department conducted with the Population Group revealed that the CNI number which Zhou provided at that time was registered in their systems as belonging to him.
The delegate stated in the NOICC that the applicant had deliberately set out in the VA to mislead the Department into thinking that the person whom she had identified as her partner and the father of her two children was not Xin Min Zhou but some other person who bore a close resemblance to him. There were, he said, other circumstances which reinforced this view including the fact that the persons depicted in the photographs which had been affixed to the two CNI cards strongly resembled each other, that the two names were phonetically similar, and that the other details given in the cards, apart from their year of birth, were identical.
After considering the Country Information on the meanings to be attributed to the assignment of digits in the two CNI cards (NOICC footnote 1, page 4), the delegate said that the similarity in the other numbers on these cards, that is the numbers other than those which signified their year of birth, made it highly unlikely that two different persons would share them. This, coupled with the fact that the Department had no genuine identity documents to support the existence of any other person by the name of Xinming Zhou, indicated to the delegate that the persons identified in the two CNI cards were in fact the same person and that the CNI card details for Xin Min Zhou had been altered on the Birth Certificates to make it appear they belonged to another person.
Although the delegate proceeded on the basis that the applicant, in her response to the NOICC, had disputed the alleged non-compliances, she has made no real attempt to do so in the review. There is no certainly no evidence given in her review case, nor have there been any submissions, to the effect that the information which she provided to the Department in the VA concerning Zhou was in fact correct, nor is there any evidence given or contention made to the effect that the Birth Certificates which she provided to support the VA were other than bogus documents as defined in the Act, that is documents which were counterfeit when issued or were subsequently altered by a person who had no authority to alter them.
As noted earlier, her claim on the issue of non-compliance is and has always been that she did not know that the information in the VA concerning Zhou was incorrect and did not know that the Birth Certificates which she provided to support the VA were bogus documents.
The short answer to these claims, given the combined effect of the relevant legislative provisions, is that for the purpose of determining the issue of non-compliance it simply does not matter whether she knew that the information was incorrect or that the Birth Certificates were bogus.
I am satisfied that the Minister acted reasonably in forming a suspicion that the Birth Certificates were bogus and that the information which the applicant provided in the VA concerning Zhou was incorrect.
For those reasons I am also satisfied there has been non-compliance by the applicant in the ways described in the NOICC, as amplified in the decision under review, and that grounds for the cancellation of her visa exist.
The second issue; should the visa be cancelled?
Having found non-compliance with Sec 103 and Sec 101(b) it is necessary for the Tribunal to consider whether the visa should be cancelled under Sec 109(1) of the Act.
Although cancellation under Sec 109 is ultimately a discretionary matter for the Tribunal in exercising the power to cancel the visa the Tribunal must consider the matters referred to in Sec 109(1)(b) and (c) insofar as these are relevant to this case together with any other matters which, on the evidence led, arise for consideration including those set out in the Department’s Procedural Advice Manual (PAM3). Thus, the matters referred to in Regulation 2.41 must be considered together with any other matters such as the consequences of cancellation, international obligations and so on.
In reviewing the issue of whether the applicant’s visa should be cancelled it is necessary for the Tribunal to consider, in addition to the evidence which the delegate has referred to, the reasons given by him for his decision together with the evidence which the applicant has led to support her case on this issue.
As noted earlier, much of her evidence, oral and documentary, relates to the circumstances in which the Birth Certificates were originally procured by her. There is little in the way of meaningful evidence to support her claim that, when the VA was filed in September 2017, she did not know that the information and documents which she was providing to establish Zhou’s identity were misleading in material respects and that she remained unaware of their misleading nature and effect until she received the NOICC in March 2021, some 3.5 years later.
Obviously, if those claims are made out, the applicant’s review case at the discretionary level would take on a very different complexion.
Apart from the documents earlier mentioned, the applicant’s documentary case consists of a copy of translated Household Register details for the applicant and her children issued in China on 23 April 2008 and an email from the Department to Jingjing sent to her on 15 March 2021.
In her Explain Letter, as amplified in her oral evidence, the applicant said that she had limited formal education in China but had met Zhou in 2001 and began a de facto relationship with him which led to the birth of their two children. She goes on to say that he helped her to start a business in Qingdao City, that she made some money from this business and used it to purchase two commercial properties and an apartment, apparently in her own name. She did not care whether she had a formal marriage with him and at first did not understand the consequences of not being married to him in the event they had children together in China.
She goes on to explain that when Jingjing was born she learned that in China an unmarried mother could not obtain a Birth Certificate and that, without such a Certificate, the applicant would be unable to obtain registered hukou or household details for Jingjing. She also learned that other problems would arise later with her schooling and work.
To solve these problems the applicant says that her mother asked a friend who knew the leaders of the hospital where she was born to issue a Birth Certificate for Jingjing and, according to the document which she provided in support of the VA, this took place on 19 May 2004.

The Explain Letter states that the same steps were taken by the applicant when Yiming was born. Her Birth Certificate was issued by the same hospital on 6 June 2006.
The applicant goes on to say in the Letter that she subsequently used these Birth Certificates to obtain registered hukou details for each of her children. Whilst she may well have been required to produce Birth Certificates for her children to obtain these details in April 2008, I do not accept her claim that the Certificates which she says were provided for that purpose were necessarily in the same terms as those which were provided to the Department in support of the VA in September 2017. Certainly, she has led no documentary or other evidence in the review to establish that they were.
Pausing here, the Birth Certificates which she provided to the Department to support the VA were accompanied by a translated Notarial Certificate dated 11 July 2017 which, as far as I can tell, purports to authenticate the original Birth Certificates and which purport to verify that the copies which the applicant had provided to the Department were in conformity with the originals.
If these Notarial Certificates are themselves authentic documents the only rational inference which the Tribunal could draw from them would be that the original Birth Certificates when issued contained the same incorrect identity details for Zhou as are contained in the documents which she provided to support the VA.
Whilst there may have been reasons for the applicant and/or Zhou not wanting to disclose to the Chinese authorities his real identity when the Birth Certificates were issued, absent any other reliable evidence I am unable to determine whether these documents correctly identified him at the time they were issued.
The Birth Certificates which the applicant provided shortly after the hearing, absent any other evidence, do not assist me a great deal and, indeed, they tend only to further complicate the picture. The one for Jingjing contains no CNI details for Zhou at all and bears a different issue date to the document provided to the Department while the one for Yiming also bears a different issue date but contains his correct CNI number.
Absent any evidence from the applicant to explain these discrepancies and to inform the Tribunal how she came into possession of these other Birth Certificates I can only infer, once again, that her evidence on these topics would not have assisted her case. I do not accept her oral evidence that she knows nothing about them apart from her mother having provided them to her.
That said, it ultimately does not matter whether the Birth Certificates which the applicant initially procured with the assistance of her mother were or were not authentic documents at the time they were issued. What matters is how and why they came to contain the incorrect information concerning Zhou’s when the VA was filed in September 2017 and whether the applicant knew at that time that what she was providing to the Department concerning his identity was false in material respects.
I do not accept her evidence that she was unaware, until she received the NOICC, that the information which she provided in the VA about him was incorrect. It may well be that Zhou made the necessary arrangements to procure these Certificates, as she implicitly contends. But her evidence on this is anecdotal and imprecise and I cannot accept that she was unaware that the information concerning his identity was incorrect. Her oral evidence was to the effect that she only knew his name but this is implausible and, indeed, incredulous given they were in an ongoing de facto relationship for some years which involved the procuration of two children.
More particularly, I cannot accept her oral evidence that she did not know at the relevant times that Zhou was born in 1954. This evidence is impossible to accept in circumstances where their relationship began in 2001, at a time when she was 24 years of age. Nor can I accept her oral evidence that she could not read the information in the untranslated Birth Certificates or write in the Chinese language, if this is what she is asserting. Her evidence on these matters was quite unconvincing and really nothing more than a clumsy attempt to underplay her abilities and capacities.
In the decision under review the delegate found that the information which the Department had obtained in the course of its investigation established that the applicant’s spouse and the biological father of her two children was Xin Min Zhou born 12 May 1954 and that the incorrect information which she had provided in the VA about his identity, and the documents used to support it, were given with the intention to mislead the Department into believing that the person she described in the VA was a different person to Xin Min Zhou.
The delegate also observed in his decision that the applicant in her Explain Letter did not dispute that the information she had provided in the VA concerning Zhou was incorrect, did not dispute that the checks which the Department ran had revealed his real identity, and did not explain to the delegate how the incorrect information came to be provided to the Department.
Although the delegate felt that the circumstances in which the applicant initially procured the Birth Certificates suggested that she obtained them other than through authorised channels, he did not necessarily accept that she obtained them in the way she contended, nor could he accept that she believed they were genuine documents at those times.
Even so, the delegate left open the alternative possibility, correctly in my view, that the Birth Certificates which she submitted to the Department in support of the VA had been validly issued but were subsequently altered in a way which incorrectly identified Zhou and were thus probably not in the form they took when the Chinese authorities issued the hukou details and passports for her children. The delegate could not therefore discount the possibility that genuine Birth Certificates were issued by the Chinese authorities in 2004 and 2006 but were altered later to include the incorrect details and that the altered versions were provided to the Department in September 2017.
Having considered the evidence, such as it is, I prefer the delegate’s alternative case theory that the Birth Certificates may well have been valid when issued despite the unorthodox way in which the applicant procured them, and were subsequently regarded by the Chinese authorities to be valid in 2008, but were later altered to convince the Department that Zhou was residing in China in September 2017 and was intending to remain there when in fact he was already living permanently in Australia.
Having reiterated in his decision that the applicant had offered no explanation as to how the incorrect information and documents came to be provided in the VA, the delegate said that it was likely done to prevent the Department being made aware that Zhou was already in Australia, a fact which would have been relevant to the Department’s assessment of whether the applicant and her children genuinely intended to remain here temporarily.
Again, despite having been alerted to these deficiencies in her response to the NOICC, the applicant has led no evidence in the review to fill in these gaps and/or contradict any of those findings.
There is evidence in the Department’s file in the form of an internal memorandum dated 17 March 2021 which confirms that Zhou was in Australia on that date and, indeed, that he had applied for Australian Citizenship, a fact which itself suggests that he had been here for some time.
The delegate considered that the incorrect information might have been provided in the VA to conceal from the Department the fact that Zhou had himself provided incorrect information in his earlier application for permanent residence in Australia concerning his marital status and the fact that he had fathered two children with the applicant. The delegate said that this information would have been relevant to the Department’s assessment of his and his de jure wife’s applications for permanent residency.
Once again, despite having been alerted to these findings, the applicant has led no evidence in the review to inform the Tribunal as to what she knew about his immigration status in Australia, or to otherwise contradict any of these findings. This is almost incomprehensible in circumstances where, on her own case, their relationship did not come to an end until 2020.
Asked at the hearing whether she knew where Zhou was currently living she said that she did not but did not suggest that he was living in China, nor has she led any evidence to the effect that she believed he was in that country at the time the VA was filed.
I do not accept her evidence, if indeed this is what she is suggesting, that at the time the VA was filed she did not know that he was living in Australia. If he arranged “everything” (her word) to enable her to lodge the VA in September 2017, it is utterly implausible she would not have known that he was residing in Australia at that time.
Although I am prepared to accept that Zhou was very much involved in the provision of the information and documents which found their way into the VA, the applicant has led no evidence in the review to the effect that she was acting under his influence when she lodged that application in September 2017. Her case, as I understand it, is that she simply left it up to him to determine what information the Department would be given concerning his identity.
Bearing in mind her strong devotion to her children and her clearly stated preference for them to be educated in Australia, I cannot accept her claims that she did know that the information which she was providing to the Department about Zhou’s identity in the VA was incorrect and did not know that the Birth Certificates had been altered to bring them into line with that information.
Her oral evidence was to the effect that he arranged it all and that she simply “followed” him which, in context, could only be an admission that she knew full well what he was intending to do to procure the visa for her.
As noted earlier, in her oral evidence the applicant also attempted to distance herself from the evidence in her Explain Letter and, indeed, at one point denied having written it. More particularly, she denied having conducted a business in China and denied that she made any money from it.
I cannot accept her oral evidence on any of these matters. There are simply too many unanswered questions arising from it. She did not pause to explain how she was able to acquire the properties she refers to in her Letter if she never operated a business. She did not suggest, as she might have done, that Zhou provided the money to purchase them and put them in her name because he felt it was the right thing to do. I am quite unable to accept her bland denials at face value and, indeed, they appear to me to be nothing more than a rather clumsy and belated attempt to persuade the Tribunal that she was so poorly educated and naïve as to be unable to appreciate or understand what Zhou was doing at the time the VA was filed.
The evidence in her translated Explain Letter about her work history in China and the fact that she was able to operate an apparently successful business in that country for some years is more reliable. Although the actual financial content may be obscure, she does appear to me to have had sufficient business acumen to establish and conduct such a business with or without assistance from others, including Zhou. Her oral attempts to underplay her abilities were unconvincing, reflect poorly on her and serve only to undermine her general credit and thus her evidence on other aspects of her case.
There is other evidence led in this case which is very difficult if not impossible to reconcile with the applicant’s contentions.
Jingjing says in her statement that, at the time her VA was filed, she could not understand why her father’s name had been changed from Xinmin Zhou to Xinming Zhou, that she queried this at the time, presumably with the applicant, and was told not to worry. She accepts, or at least does not dispute, that the Birth Certificates are bogus and that she was aware of this in 2019.
This evidence is clearly at odds with that given by the applicant. If Jingjing was aware of these irregularities it seems inconceivable that the applicant would not have been.
Pulling these threads together the applicant likely knew that the information and documents which she was providing to the Department in September 2017 concerning Zhou’s identity were incorrect and that she went ahead and lodged the VA nonetheless because she wanted to procure the visas.
Although it is possible that she was acting under the influence of Zhou in or about September 2017, I am not prepared to find that she was given the absence of any meaningful or reasonably detailed evidence from her to this effect.
Obviously, these are matters which can and do attract considerable adverse weight on the issue of whether the applicant’s visa should be cancelled.
Turning to the other mandatory considerations, the applicant’s present circumstances are that she is living with Gary Lawrence in a de facto relationship and has been since May of this year, is currently working long hours in the massage industry in Queensland, has recently sold a property in China for about $300,000 AUD to help meet her children’s education expenses here, and hopes that they can remain here until such time as they complete their educational pathways.
She says, and I accept, that her children are capable hard working students, that Jingjing is studying a Medical Imaging course at the Queensland University of Technology which is due to be completed in 2024, that Yiming will sit for her Higher School Certificate in 2023 and will likely want to pursue tertiary studies here.
I gather the applicant’s children are very close to each other, they appear to live happily together in rented accommodation in Brisbane and wish to do so for the foreseeable future. They do not live with the applicant and Mr Lawrence, apparently.
This being so, the practical reality is that the children are no longer dependent on her except in a financial sense, they are now for all intents and purposes emotionally independent young adult women. While Yiming is still technically a minor she will very shortly attain her majority. Mr Lawrence appears to have willingly taken on the role of a step-father to them they do not appear to have any ongoing contact with their biological father, at least at this stage.
I do not consider that cancellation of the applicant’s Student Guardian visa in these circumstances will have the effect of splitting the family unit or otherwise affecting family unity in any relevant sense. The applicant has clearly demonstrated that she is prepared to continue to support her children from China and she appears to have the financial means to do so.
There is no reason for the Tribunal to expect this will change any time soon if the delegate’s decision to cancel her visa is affirmed, as I think it must be. On any view of the evidence, she remains very close to her children and is likely to remain close to them for the foreseeable future.
I accept there will be some emotional hardship arising from the cancellation of her visa as the applicant will likely have to return to China but she has well established economic ties to that country and retains commercial interests there. There are also other migration possibilities for her to explore in the event she wishes to remain here. I do not consider that she will suffer any undue hardship in these circumstances.
Turning to the applicant’s contention that the delegate has taken inconsistent positions in relation to her family’s visas, the only evidence on this aspect which the Tribunal has consists of the Department’s email to Jingjing of 15 March 2021 which simply states that the delegate was satisfied that the grounds for not cancelling her visa outweighed the non-compliance. Although the delegate reserved his position if further adverse information came to hand at a later stage no such information appears to have been received.
The current position appears to be that Jingjing has either retained the Student TU-500 visa granted to her in November 2017 or, if that visa has expired, that she has been granted a fresh Student visa to complete her tertiary studies here.
But I do not consider that cancellation of the applicant’s visa would amount to disparate treatment or would otherwise be incompatible with the decision not to cancel Jingjing’s visa.
The evidence from Jingjing, which I accept, is to the effect that she had no role to play in the provision of the relevant information and documents in her VA concerning her father’s identity. She would likely have left this entirely in the hands of the applicant and/or her father. In September 2017 she was barely 15 years of age and, as far as I can tell, would have then been incapable of having any real appreciation of what was being done to procure the visas.
While Jingjing noticed that his name had been mis-spelt on enquiry she was told by the applicant not to worry. It would have been natural for her to have complied with her mother’s suggestion without further ado.

100. I do not think that Jingjing can, in these circumstances, be regarded as in any sense responsible for what her parents did in connection with the preparation and lodgement of her visa application.
101. Viewed in this way, there is no disparate treatment or relevant inconsistency arising from the decisions of the delegate and thus no basis for any complaint from the applicant that she has been unfairly treated.
102. I accept there are no other instances of non-compliance by the applicant and no suggestion that she has committed any other breaches of the law but do not regard either of these matters to attract any preponderant weight in her favour. Nor do I regard her work as a masseuse to be a relevant contribution to the community given that she is presumably paid commercial rates for it.
103. The fact that the non-compliances occurred more than 5 years ago is a matter which the Tribunal must consider but it cannot, of itself, attract significant weight, at least in the circumstances of this case. I have already noted that the applicant sold one of properties in China prior to her receipt of the NOICC but there is no evidence from her to the effect that she did this with the expectation that she would be living here until such time as her children completed their education. There can be, in these circumstances, no case for a detrimental change of position arising from the sale.
104. There do not appear to be any other relevant matters about which evidence has been given or which otherwise require specific consideration.
Summary and conclusion
105. Having found the relevant non-compliances, after considering her overall circumstances and having due weight to the prescribed matters and to the other relevant discretionary considerations, the Tribunal concludes that the applicant’s Subclass 590 (Student Guardian) visa should be cancelled.
106. As noted earlier I have decided to set aside the delegate’s decision to cancel Yiming’s TU-500 Student visa and will shortly deliver separate reasons for doing so.
DECISION
107. The Tribunal thus affirms the decision to cancel the applicant’s visa.
Michael Bradford
Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or

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

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

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, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* 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 notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 4910

9 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness