Chen (Migration)

[2022] AATA 3398

Chen (Migration) [2022] AATA 3398 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiahuai Chen

REPRESENTATIVE:  Mr Yuwen Huang

CASE NUMBER:  2201302

HOME AFFAIRS REFERENCE(S):          BCC2019/3330442

MEMBER:Wan Shum

DATE:26 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2022 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – incorrect information and bogus documents given in visa application – de facto relationship and bank statements, phone account and tenancy agreement – forensic examinations showed documents fraudulently altered – previous visa application declared no relationship and different address – discretion to cancel visa – incorrect information conceded – claim that application completed and lodged by third party – knowledge and indifference that claimed partner was being added to application – would have met requirements in any case – length of residence, study, work and mortgage – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 101, 103, 107, 109, 375A
Migration Regulations 1994 (Cth), r 2.55

CASES
Cai (Migration) [2021] AATA 4474
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act). The visa had been granted to the applicant on 20 December 2016 on the basis that he met the primary criteria. Ms Xiaomin LIN was also granted a Subclass 189 visa as a member of his family unit on the basis of their claimed de-facto relationship.

2. Subsequently, forensic examinations revealed that certain documents provided in support of the claimed relationship were fraudulently altered. The delegate cancelled the applicant’s visa on 28 January 2022 on the grounds that incorrect information and bogus documents in breach of ss 101(b) and 103 of the Act respectively had been given. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is represented in relation to the review by a lawyer.

4. The applicant appeared before the Tribunal on 10 August 2022 by videoconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages when necessary. The representative was present with the applicant throughout the hearing.

5. The Tribunal was provided with information from the Department relevant to the cancellation and a non-disclosure certificate was issued by an Immigration officer pursuant to s 375A of the Act in respect of internal correspondence sent between officers of the Department. The Tribunal advised of the existence of the non-disclosure certificate at the hearing and provided a copy of the certificate to the applicant following the hearing, seeking his comments on the validity. In response, the Tribunal was informed that no comments would be provided. The certificate is electronically dated and signed and stated that the release of the documents would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The Tribunal considers that the reasons given for non-disclosure are specific, detailed and correctly identify the reason for non-disclosure and is therefore of the view that the certificate is valid. It further considers that the information referred to in the email correspondence, to the extent they are relevant to the review, has been set out in the delegate’s decision record, a copy of which was provided by the applicant.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Background

7. The applicant first entered Australia as the holder of a student visa in July 2013. The applicant was then granted a Subclass 485 visa which ceased on 20 December 2016 which was the date he was granted a Subclass 189 Skilled Independent visa. Ms Xiaomin LIN was granted the same Subclass of visa on the basis of her claimed de facto relationship with him.

8. On the application form for the Skilled Independent visa which was lodged online with the Department on 14 July 2016, the applicant’s relationship status was entered as de facto with the date the de facto relationship began as 20 June 2014. Under the section for Migrating Family members, the passport details of Ms Xiaomin LIN were entered. The postal and residential address provided on the form was Unit 504/1 Gauthorpe St, Rhodes, NSW 2138.

9. Documents provided in support of the application to demonstrate co-habitation as a de facto couple included the following:

   ·Bank statement for Commonwealth Bank account [Number 1] for the statement period: 1 July 2014 - 31 December 2014 with the following details for the name and address: Mr J CHEN, Unit 532, 11 Victoria Park Pde, ZETLAND NSW 2017.

   ·Bank statement for Commonwealth Bank account [Number 2] for the statement period: 31 October 2014 – 30 January 2015 with the following details for the name and address: Mr J CHEN Ms X LIN, Unit 532, 11 Victoria Park Pde, ZETLAND NSW 2017

   ·Vodafone Tax Invoice for Account Number 761191444 for the period 21 October 2014 – 20 November 2014 with the following details for the name and address: Ms Xiaomin LIN at Unit 532/11 Victoria Park Parade, ZETLAND NSW 2017

   ·NSW Residential Tenancy Agreement purportedly signed by Shengge FAN as the landlord and Jiahuai CHEN and Xiaomin LIN as the tenants. The “location” is specified as Unit 532/11 Victoria Park Pde, ZETLAND NSW 2017 and the “term”  starting on 20 June 2014 and ending on 20 June 2015.

10. Subsequent to the grant of the Subclass 189 visas, a Forensic Document Examiner found that there is evidence of intentional alteration to the generation of the bank statements and Vodafone tax invoice to a degree that the only reasonable proposition is that the originating document has been fraudulently altered.  The delegate considered that the NSW Residential Tenancy Agreement, which states both he and Ms Xiaomin LIN held a formal lease agreement between 20 June 2104 and 20 June 2015, at Unit 532/11 Victoria Park Pde, ZETLAND NSW 2017, was also falsified.

11. In addition, information given on the visa application form for a Temporary Graduate (subclass 485) visa which was lodged on 4 August 2015 with the applicant’s details included ‘Form 80 – Personal Particulars for Assessment Including Character Assessment,’ which was signed and dated by the visa holder on 9 August 2015. On page 4 of Form 80 under the heading ‘Part D – Address and Contact Details’ at Question 18, the visa holder stated he had commenced residing at ‘84 Yorktown Parade MAROUBRA, SYDNEY 2035’ in ‘June 2014’ until ‘current.’ On page 11 of Form 80, under the heading ‘Part Q – Associated People’ at Question 43 ‘Do you have a partner (includes wife, husband, fiancée, boyfriend, girlfriend, significant other and de- facto)?’ The applicant had responded ‘no’, which means he declared that he did not have a partner at that time.

12. Given the above, it was suspected that the applicant had provided bogus documents to the Department in support of the claimed de facto relationship and incorrect answers in the application for the Subclass 189 visa. The delegate sent the applicant a notice of intention to consider cancellation (NOICC) of his visa setting out the alleged breaches by registered mail on 15 November 2021 to an address in Grandstand Parade ,Zetland NSW 2017 and by email. A response was received to the NOICC and the applicant’s visa was then cancelled on 28 January 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The law

13. 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.

14. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. While the decision maker 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), so long as the notice is given by one of the methods set out in reg 2.55(3), it is irrelevant whether or not the applicant in fact received the notice.

15. In this case, the method of notification chosen by the delegate was to send the letter by registered post to the person’s last residential address known to the Minister which on 15 November 2021 was the address at Grandstand Parade, Zetland NSW 2017 with copies sent to the email addresses previously provided to the Department on the Subclass 189 and 485 visa application forms.

    The notice

16. The delegate considered that it appeared that the applicant had breached s 101(b) by providing incorrect answers regarding the claimed de facto relationship and s 103 by providing documents that appeared to have been fraudulently altered.

17. 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 NOICC complied with the statutory requirements including reg 2.55(3), regarding notification of the notice.

18. The applicant responded to the NOICC, and his response is considered below.

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

19. 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 sections 101(b) and 103 in the following respects:

    ·Provision of incorrect answers when details of a claimed de facto relationship status between the applicant and Ms Xiaomin Lin purportedly began on 20 June 2014 on the application form; and by answering ‘Yes’ to the Declarations on page twelve, both the applicant and Ms Lin declared that complete, correct and up-to-date information had been provided in the application.

    ·Provision of bogus documents, specifically the bank statement for Commonwealth Bank account [Number 1] for the statement period: 1 July 2014 - 31 December 2014 with the following details for the address: Mr J CHEN, Unit 532, 11 Victoria Park Pde, ZETLAND NSW 2017, the bank statement for Commonwealth Bank account [Number 2] for the statement period: 31 October 2014 – 30 January 2015 with the following details for the address: Mr J CHEN Ms X LIN, Unit 532, 11 Victoria Park Pde, ZETLAND NSW 2017; and the Vodafone Tax Invoice for Account Number 761191444 for the period 21 October 2014 – 20 November 2014 with the following details for the name and address: Ms Xiaomin LIN at Unit 532/11 Victoria Park Parade, ZETLAND NSW 2017.

    Incorrect information

20. The suspected information that was incorrect was that the applicant and Ms Lin were in a de facto relationship from 20 June 2014.

21. The applicant’s evidence is that the parties were not in a de facto relationship and that he never lived at the Victoria Park Parade address. At the hearing, the applicant said that they had only met once, during a meeting arranged by the agent he had used to make his visa application.

22. Given this, the information on the visa application form that he was in a de facto relationship was incorrect. The Tribunal finds that the applicant was not in a de facto relationship with Ms Lin and that all the information entered on the electronic application form regarding this was incorrect. For this reason, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    Bogus documents

23. In considering whether the identified documents are bogus documents as defined, it is claimed that the applicant had no knowledge and did not participate in making or giving the documents. The applicant’s evidence is that he had only ever signed a blank piece of paper as requested by the agent and had not signed any forms or other documents. Given that the applicant admits that he was not in a de facto relationship with Ms Lin and never lived at the Victoria Park Parade address, it appears that at least 2 of the documents given with the visa application were altered to show his name at the Victoria Park Parade address, and a third, being the tenancy agreement at that address was fraudulently signed for him using a copy of his signature or forged. In respect of the Vodafone tax invoice and statement, it is possible that Ms Lin may have resided at that address. Given this, the Tribunal concludes that at least 3 of the documents had been altered to reflect that he resided at this address with Ms Lin when his evidence is that they did not.

24. The submissions are that the visa application was not lodged by the applicant himself, but by ‘Gordon’ though there is no indication either on the visa application form itself or with the application to reflect that the application was lodged with the assistance of another party. The applicant gave evidence at the hearing that ‘Gordon’s’ office was near World Square in the Sydney suburb of Haymarket but could not recall the exact address. He told the Tribunal that he had contacted the “agent Gordon” for assistance with his Subclass 189 visa having obtained his details from a friend. As he had the required score, the agent later suggested that he could bring in another person, which was Ms Lin, although he did not know her. He only met her once with the agent when they discussed how the application would work and the agent assured him it will not be an issue.  It was claimed that he had agreed to the proposal as the agent said that the visa application fee and the cost of the health check would be paid for him. The applicant said he filled out his details on the form, without having signed it, and gave it to the agent who said he would handle it. Later he was asked for his signature and he went to the agent’s office and signed a blank document. When asked whether he had seen the application form before it was lodged, the applicant said that he did not although claimed that he had asked to see it but that the agent never gave it to him.

25. It was submitted that ‘Gordon’ created an email address “[email protected]” which was used to lodge the 189 visa application but it was not the applicant’s actual email address so he did not have access to this email nor to the online visa application form. The Tribunal was not presented with any information which supports the claim that ‘Gordon’ lodged the visa application form, such as a service agreement or even any correspondence between them. The only evidence provided to support the claim that another party lodged the application is a copy of an email sent on 3 January 2017 from [email protected] to his claimed actual email address of [Email address], which states:

    Hi

    Please check the visa grant letter

    Best regards

26. While there is no indication in the body of the email as to who sent it, on balance, the Tribunal considers that it lends some support to the applicant’s claim that he did not lodge the visa application himself.

27. As there is nothing before the Tribunal which indicates that Ms Lin and the applicant had in fact lived together in a de facto relationship at the Zetland address or even knew each other, the Tribunal is prepared to accept that the application was not lodged by the applicant himself. It appears to the Tribunal that the applicant had consented to and agreed to proceed with an application which contained false information that he was in a de facto relationship with Ms Lin. There is no apparent advantage from an immigration perspective to the applicant of having done this, as his claim is that he would have met the pass mark for the visa on his own. The only person benefiting from this arrangement from an immigration perspective was Ms Lin, who was granted a permanent visa as a member of his family unit. Presumably, the agent received some kind of financial benefit although there is no evidence before the Tribunal in this case regarding this aspect of the application. Given the risk involved to the applicant, the Tribunal has doubts that the only form of compensation the applicant received was payment of the visa application fee and his health check costs, which as his representative referred to in the submissions would have amounted to around $4,000 stating that it was a “minor benefit”. While it may not be a large amount, the applicant said it was a good amount of money at the time as he had just gotten out of school and had no job at the time.

28. Irrespective of the amount received by the applicant directly or in kind, it is claimed that he had no knowledge of the bogus documents and “the action of providing bogus documents is beyond his control”. However, the Tribunal does not agree with that submission. The applicant knew another person would be added to his Subclass 189 visa application as his de facto, even though he was not in such a relationship. So while the Tribunal does not consider that there is evidence which reflects that the applicant was directly involved in changing the addresses appearing on the Commonwealth Bank and Vodafone statements or the tenancy agreement, the applicant’s evidence is that he had signed a blank document and the Tribunal is of the view that he had knownthat the agent would be using and copying his signature for the Subclass 189 visa application, and thus consented to its use. The Tribunal considers that the applicant would have understood that there would be documents provided for the application which would include material to demonstrate that he and Ms Lin were in a de facto relationship. Therefore, while it appears that the applicant did not take any interest inwhat was actually submitted to the Department so did not know which documents his signature was ultimately used on and which documents were altered, he had agreed for ‘Gordon’ to use his signature in connection with the visa application so that Ms Lin would be granted a visa as his de facto by signing a blank piece of paper. In these circumstances, the Tribunal finds that the applicant authorised the agent to put his signature on all and any documents that were provided for the visa application and that any alterations to his own and/or Ms Lin’s documents were done by the agent with his consent.

29. In any case, it is not necessary when making a finding as to whether there has been non-compliance with s 103 that the applicant had personally altered the documents himself or that it was “beyond his control”. Regardless of whether he did or did not give explicit instructions to ‘Gordon’ to create and submit bogus documents, the applicant’s own evidence is that he entrusted ‘Gordon’ with the entire process. In these circumstances, the Tribunal considers that he caused the evidence to be given for this application by authorising ‘Gordon’ to prepare and lodge the application on his and Ms Lin’s behalf and by doing so, he gained a benefit in the form of permanent visas without having to pay the visa application and health check fee, while Ms Lin gained a permanent visa which she likely was not entitled to if she had made the application herself.

1. It is also not necessary for the Tribunal to reach a concluded view on who altered the documents, but in this case, it would appear likely to have been ‘Gordon’, or perhaps an associate of his. There is nothing to suggest that ‘Gordon’ or any other person had authority to alter the bank account or Vodafone statements, or sign a tenancy agreement between the applicant and Ms Lin and another party for a unit in which the applicant did not reside. The Tribunal suspects that the documents were not altered by a person who had authority to do so. The Tribunal finds on the evidence before it that the documents examined and listed above had been altered and reasonably suspects that the documents were altered by a person who does not have authority to do so.

2. Having regard to his evidence that he did not know Ms Lin and had signed a blank piece of paper for use with the Subclass 189 visa application, the Tribunal has formed the view that in the circumstances, the applicant had effectively caused these documents to be provided by relying upon, and authorising ‘Gordon’ to lodge the application with himself as the applicant who met the primary criteria, and add Ms Lin as a de facto partner when she was not. The Tribunal therefore finds that the applicant gave, presented or provided to an officer, an authorised system, the Minister a bogus document or caused such a document to be so given, presented or provided. For this reason, there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

3. 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).

4. 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. Briefly, they are:

   ·     the correct information

   ·     the content of the genuine document (if any)

   ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

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

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

5. 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.

6. The evidence provided in response to the notice of intention to consider cancellation and on review is that the correct information was that the applicant was not in a de facto relationship with Ms Lin, or anyone else. In addition, the applicant has never resided at the Victoria Park Parade address which appears on two sets of bank statements the show his name.

7. The set of bank account statements for bank account [Number 1] for the period 1 July 2014 - 31 December 2014 provided by the applicant on review reflect the same transactions as the copy provided to the Department, but at a different address. The applicant did not live at Victoria Park Parade which means that the Residential Tenancy Agreement was falsified and he not have a joint bank account with Ms Lin which means those statements were altered.

8. It was submitted that the grant of the 189 visa to the applicant was not based on incorrect information or the bogus document because the applicant would have been granted the visa anyway. The claim is the applicant would have met the points test criteria without having to rely on partner qualifications. If the applicant’s claims regarding points are correct, it does appear that he would met the pass mark and invitation mark without having to rely on any points under Part 11 of Schedule 6D that would have been attributable to Ms Lin. However, even if the Subclass 189 visa would have been granted to the applicant, it is not claimed, and there is no evidence that, it would have been granted to Ms Lin such that a visa had been granted partly on incorrect information and bogus documents. The applicant’s evidence is that he had agreed to assist Ms Lin by including her on his Subclass 189 visa application even though he did not know her and she was not a member of the applicant’s family unit. The definition of ‘member of the family unit’ includes a de facto partner, which is defined in s 5CB and involves an assessment of whether they have a mutual commitment to a shared life to the exclusion of all others; the relationship between them is genuine and continuing; and they live together; or do not live separately and apart on a permanent basis; and they are not related by family. The supporting documents listed above were provided to support the claim that they were living together, and thus the decision to grant the visas relied in part on the information given in the visa application form and the supporting documents which had been altered. While the applicant did not appear to need to rely on Ms Lin to meet the criteria for the grant of the visa, nevertheless the visa application required payment of the application fee and health check payment which he said was arranged by ‘Gordon’ . He would not have been granted the visa if those payments were not made. In this way, the applicant did receive a benefit from his involvement by not having to pay for the visa application and health check himself.

9. The circumstances in which the non-compliance occurred based on the applicant’s evidence is that he was seeking to apply for a permanent visa after having held his Subclass 485 visa for over a year. He approached ‘Gordon’ to lodge his visa application and agreed to the proposal of adding a prior unknown party to his application. The Tribunal finds that he had entrusted the entire visa application process to another party and it appears that he was indifferent to that agent acting unlawfully or dishonestly by giving incorrect answers and/or bogus documents. Even if he was not told which documents were fraudulently altered, he knew that another party was being added to his application as his de facto when he was not in a relationship with her and did not even know her. He also admits to not having checked through the application, and having previously lodged an application himself, would be aware that there would be consequences of making false representations regarding his relationship status.  The Tribunal therefore does not consider that the agent gave a ‘misleading’ service, as the applicant was fully aware that Ms Lin was being added to his application. The representative has submitted that payment of the application fee and health check “was such a minor benefit that did not worth (sic) [the applicant] making such a risky decision… [he] made this wrong decision under the inducement and pressure from the agent” and that “the non-compliance occurred mainly due to the former unlicensed agent’s misconduct”. However, the Tribunal does not agree with these submissions. While the applicant may now feel regret for agreeing to this course of action, and likely only because his visa has been cancelled, he knew when using ‘Gordon’s’ services that another person was being added to his application and there is nothing to suggest he was coerced or pressured to do so. He could have decided not to proceed with using the agent if he did not wish to, but it appears that having the application fee and health check fee paid for was enough compensation for any risk that might arise. While the benefit has been described as “minor”, the applicant effectively received $4,000 in kind, which is still a benefit. The applicant himself said that it seemed a good amount of money at the time as he had just left school and did not have a job. The submission refers to his naivety in agreeing to proceed with this course of action, and while this may be the case, having previously made a Subclass 485 visa application himself, the Tribunal considers that he would have been aware of the possible risk of cancellation if false claims were made. The Tribunal considers that he was aware that the course of action may result in a possible visa refusal if found out prior to the grant, or cancellation if discovered at a later date.

10. The applicant completed his Masters degree in Australia and is currently working as a Network Engineer for Service Stream (formally known as Lendlease Services) on a full-time permanent basis since 25 February 2019. It is submitted that the applicant is a senior designer in the NSW Design Team working on designing National Broadband Network (NBN) network all over NSW.

11. The applicant has also purchased a property at Lidcombe on 8 April 2020 and the property is subject to a 30-year mortgage. It was submitted that if the visa was cancelled, he would probably lose income and lose the ability to repay the interest and there is a possibility that the bank will sell the property. It was submitted that the applicant’s present circumstances should be given greater weight against cancelling his visa.

12. The submissions refer to another Tribunal decision, differently constituted, finding that cancellation of the applicant’s Subclass 189 skilled independent visa would “lead to loss of opportunities for the applicant and negate many years of her study and settlement in Australia” in Cai (Migration) [2021] AATA 4474 (3 November 2021). However, the Tribunal notes that this is only one of the considerations that theTribunal took into account and that the circumstances in that case can be distinguished, notably that the Tribunal in that matter was of the view that the parties were in a de facto relationship and it was unclear why bogus documents were submitted in that case. In any case, the Tribunal is not bound by the decision of another decision maker and it does not consider that it is required to adopt the same conclusion. The Tribunal accepts that he has full-time employment as a Network Engineer having completed his Masters study at UNSW and holds a property in Sydney, but does not consider that these factors outweighs the gravity of having allowed a person who was not entitled to the visa to be added to his application.

13. It was submitted that the applicant’s contribution to Australian society should be given greater weight against cancelling his visa. The contribution was described as his participation and completion of several NBN projects as a Senior Network Engineer, where he contributes his skills, knowledge and diligence “to the country’s network construction”. It was claimed that the applicant “plays an important role in the company” being in charge of three projects in NSW previously.

14. The Tribunal has taken into account that if the visa remains cancelled, that the applicant would probably lose his current job and that “his employer must recruit and train a new engineer to fulfil the position and this may cause delay and monetary loss not only to the company but also to the Australia NBN construction”. It was submitted that this is a compelling reason that the visa cancellation will affect the interest of Australian NBN construction and the company. However, there is no evidence from his employer regarding his contribution or the impact of the visa cancellation on their operations which would support these assertions. When asked, the applicant said he had not informed his employer of his visa cancellation. It appears that two of his colleagues, who are friends, are aware of his situation but not the Manager or Human Resources department. While it is possible that another person may need to be employed to fill his position, no such evidence from the employer to corroborate this claim was provided. The Tribunal is not persuaded on the evidence presented that the applicant leaving his employment would have such grave consequences as those described in the submissions of “delay and monetary loss” to NBN construction.

15. In terms of the submission that the applicant “has already integrated into Australia community and tries his best to help the community”, the evidence of community contribution was attending an employer organised volunteer activity at Riverstone Public School on 12 September 2019 with other colleagues and a $25 donation to the University of New South Wales which was made on 25 November 2011, 10 days after the notice of intention to consider cancelling the visa was sent to the applicant. The Tribunal accepts that the applicant was involved in a single employer organised activity even allowing for the impact of COVID-19, but it does not consider that he “tries his best to help the community” based on this single event. Given the timing of the donation, and that there has only been one single donation, the Tribunal does not consider that it reflects that the applicant genuinely “cares about the university's development and makes donations to support the university” as submitted.

16. The submissions refer to PIC 4013 criterion which imposes a 3-year exclusion period if a person has previously had their visa cancelled as a mandatory legal consequence to a cancellation decision. The Tribunal has taken into account that if the applicant’s visa remains cancelled and if he does not hold any other visa, he would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. It has also taken into account the exclusion period in relation to some visas and that the applicant would have limited opportunities to make visa applications onshore, as well as the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia. It was submitted that it will also affect his future visa applications once a record of cancellation of visa exists. The Tribunal has considered the consequences outlined and is of the view that they are legitimate consequences imposed to deter others from engaging in similar conduct. The Tribunal considers these restrictions to be a legitimate consequence of providing incorrect answers and bogus documents to obtain a benefit and assist another party to gain a benefit that she would not have been entitled to.

17. Ms Lin was granted a visa as a dependent and her visa would have been cancelled under s.140 and would remain cancelled if his visa remains cancelled. The Tribunal does not consider that this is a reason for setting aside the cancellation, as she was not entitled to the visa and it is an intended consequence of the legislation.

18. In respect of the degree of hardship that may be caused to the applicant, it was submitted that the applicant would find it difficult to readapt to his life in his home country because his essential qualifications and work experience were all obtained in Australia. The Tribunal accepts that the applicant has been in Australia since 2013, having entered on a student visain July. It was submitted that he has no work experience in China and it would be difficult for the applicant to find a job in a short time and that, even if he could find a job, the monthly income of these job opportunities would be such that the applicant would not be able to make his mortgage repayment obligation for his purchased Australian real property.

19. The Tribunal accepts that there would likely be an adjustment period if he was required to return to China because his visa was cancelled. He said at the hearing that he had only advised his parents, who the Tribunal understands reside in China, of the visa cancellation in August 2022. He confirmed that his future plan is to bring his parents to Australia. However, while there may be an adjustment period and he may not be able to find work straight away, no evidence was provided which suggests that he is unable to use the skills gained in Australia through his study and employment in China. In terms of his Sydney property, once he secures a job, the applicant may be able to use a combination of his wages and any rental income from leasing his property to pay the mortgage, or alternatively he could sell the property. These matters do not in the Tribunal’s view outweigh the seriousness of the breaches.

20. In terms of other relevant matters, the Tribunal was provided with reference letters from Mr Ming Lun Lo (Alan) and Mr Yangfei WANG (Felix) who are the applicant’s colleagues and friends. The Tribunal also heard oral evidence from Mr Lo regarding the applicant’s character. The Tribunal has taken into account and accepts that the applicant has made close friendships with Mr Lo and Mr Wang, who he also works with and has considered these are factors supporting a decision not to cancel the visa.

21. It was submitted that there are no other instances of non-compliance with the Act and that he does not have a criminal record, and that the visa application was lodged six years ago.

22. Lastly, it was submitted that if the visa is cancelled, he will be removed from Australia and “will have to suffer the long quarantines in China for over three weeks or even more.” The Tribunal accepts that the policy of the Chinese government toward COVID-19, may make it even harder for the applicant on his return to China.

23. In terms of whether there are children whose interests would be affected, no claims were made and there is no information before the Tribunal to indicate that there are children whose interests would be affected by cancellation of the applicant’s visa in this case.

24. There is nothing before the Tribunal to indicate that cancellation of the visa would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations. There is no evidence, and the applicant does not explicitly claim, that Australia has protection obligations towards him. The Tribunal further notes that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. There is nothing in the applicant’s circumstances which prevents claims of harm being canvassed in a protection visa application.

25. The Tribunal has considered the degree of hardship that may be caused to the visa applicant and accepts that he wishes to remain in Australia and has lived in Australia for several years. Considering the matters raised, the Tribunal accepts that the cancellation of the visa would cause a degree of hardship to the applicant as his plans were to live and work in Australia where he has friends, owns a property and had planned to bring his parents to Australia in the future.

    Summary

26. The Tribunal finds that there was a breach of ss 101(b) and 103 of the Act in the way described in the NOICC and that there are grounds for cancelling the visa. In considering whether the visa should be cancelled, the Tribunal has given careful consideration to the applicant’s circumstances and has taken into account the reasons given for why the visa should not be cancelled, which includes the applicant’s life in Australia and the difficulties he may face in returning to China and having to find a job, particularly now due to the government’s COVID-19 policy. It notes however that his parents remain in China and does not consider that there is evidence presented which supports a conclusion that he would be unable to return to live and work on return to China, with his experience working in Australia as a Network Engineer possibly being of some advantage.

1. Against these considerations, the Tribunal places significant weight on the fact that, for payment in kind, the applicant aided another party to obtain a permanent visa to remain in Australia for which she was not entitled. While it is claimed that the applicant would have been granted the visa having satisfied the primary criteria on his own skills and qualifications, there is no suggestion that Ms Lin would have met the requirements for the permanent visa herself. While it was submitted that the benefit to the applicant directly was “minor”, the applicant had agreed to proceed on this basis on the suggestion of a third party and only admitted to giving incorrect information after he was notified that the Department had undertaken a forensic examination of the documents provided and was considering cancelling his visa. There is no evidence that he had taken any steps to inform the Department about the false claim that he and Ms Lin were in a de facto relationship at any point prior to this. His conduct and agreement to be engaged in making false claims undermines the integrity of Australia’s immigration system.

2. Having regard to the claimed possible hardship and difficulties that may be faced by the applicant on return to China as well as any impact on his employer and delivery of services, and noting that he has some close friendships here, the Tribunal does not consider that the number of years spent in Australia, his contribution to the community and in his employment with Service Stream outweighs his involvement in making false claims.

   Conclusion

3. 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, the Tribunal concludes that the visa should be cancelled.

   decision

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 visa.

   Wan Shum
   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.