Chen (Migration)

[2024] AATA 2254

Chen (Migration) [2024] AATA 2254 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao Chen

REPRESENTATIVE:  Mr Yang Chen (MARN: 1280442)

CASE NUMBER:  2012429

HOME AFFAIRS REFERENCE(S):          BCC2020/1800548

MEMBER:Jason Pennell

DATE:2 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 2 May 2024 at 10.48am

CATCHWORDS 
MIGRATION – cancellation – subclass 155 (Five Year Resident Return) visa – applicant provided incorrect information and a bogus document in support of 189 visa application – applicant did not provide correct information to the Department in relation to Ms Gao’s IELTS test – was not aware of the incorrect information being provided – best interests of the applicant’s child – applicant has lived in Australia since his arrival in 2008 – severe hardship – decision under review set aside 

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109
Migration Regulations 1994, r 2.41, Schedule 2,

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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2.    The delegate cancelled the visa on the basis that the applicant provided incorrect information and a bogus document in support of his combined Skilled – Independent (Subclass 189) visa application lodged with Ms Gao on 3 October 2017 and granted on 14 November 2017 (‘the Skilled visa’). Accordingly, the delegate determined there has been non-compliance with s 101(b) and s 103 of the Act.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    The applicant provided the Tribunal with a copy of the primary decision record from the Department of Home Affairs (‘the Department’) dated 4 August 2020.

4.    The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s accountant, Mr Ying Chen, and his business partner, Mr Hongyu Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5.    The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 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.

1. 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.

9. In this case, the delegate issued a Notice of Intention to Consider Cancellation under s 109 of the Act dated 30 June 2020 (‘NOICC’).[1] The NOICC contained particulars of non‑compliance with s 101(b) and s 103 of the Act based on inquiries made by the delegate about the information provided in relation to Ms Lin Gao’s application for a Skilled – Independent (Subclass 189) visa to which the applicant was included as a secondary applicant as her de facto partner (‘the visa’). Having regard to the material before the Tribunal, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 of the Act and that the NOICC issued under s 107 complied with the statutory requirements. These matters are not in dispute.

[1]    Notice of Intention to Cancel dated 30 June 2020; Dept file No BCC20201800548 Doc ID: 7606452

1. Accordingly, the questions for determination are:

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

   (b)If so, should the visa be cancelled?

2. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 of the Act and that the notice issued under s 107 complied with the statutory requirements.

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

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) and s 103 of the Act by reason that Ms Gao provided incorrect information and a bogus document in relation to her International English Language Testing System report (IELTS).

2. Section 101 states that:

   Visa 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.

3. Section 103 states that:

   Bogus 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.

4. Section 98 of the Act provides that 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.[2]

   [2]    Section 98 of the Act

5. Section 99 of the Act provides 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 ss 100, 101(b), 102(b), 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.[3]

   [3]    Section 99 of the Act

6. Section 100 provides that 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.[4]

Applicant’s migration history

[4]    Section100 of the Act

1. The applicant arrived in Australia on 8 June 2007 on a Higher Education Sector (TU-753) visa for the purposes of studying in Australia. He was granted further student visas while at university.  On 13 December 2012 the applicant completed a Bachelor of Commerce from Deakin University. On 13 June 2013 he was granted a Temporary Graduate (Subclass 485) visa. On 14 November 2017 the applicant was granted a Skilled – Independent (Subclass 189) visa as the secondary applicant to Ms Lin Gao’s application.

2. On 30 June 2020 the Department issued the applicant with an NOICC and on 4 August 2020 the applicant’s Skilled – Independent visa was cancelled. As a result, the applicant’s application for a Resident Return (Subclass 155) visa was cancelled on 4 August 2020.

3. The applicant was granted a Bridging visa (WE 050) which is currently in effect. The applicant applied for review of the decision to cancel his visa on 4 August 2020.

The NOICC

1. The Department alleged that based on the information supplied to it that the applicant provided incorrect information and a bogus document in the visa application relating to Ms Gao’s IELTS.

2. The NOICC refers[5] to the facial comparison checks made by the Departmental Forensic Facial Image Examiner. The examiner undertook a facial comparison check between the image Ms Gao provided to the Department and the photograph in her Chinese passport provided with her visa application and noted that they appear to be the same person. The examiner then made a facial comparison with the photo attached to the IELTS test report provided with her visa application and concluded they were not the same person.[6]

   [5]    Notice of Intention to Cancel dated 30 June 2020 at p.4; Dept file No BCC20201800548 Doc ID: 7606452

   [6]    ibid

3. In the NOICC the delegate stated[7] that he did not consider the applicant had not complied with s 103 of the Act because:

   The photograph appearing on Ms Gao’s IELTS test report, which was submitted in support of Ms Gao and the visa holder’s combined Skilled - Independent (subclass 189) visa application, is not an image of Ms Gao as claimed in the document, but of Ms Jiao SONG (born 5 February 1986).[8]

   [7]    ibid

   [8]    ibid

4. In addition, in the NOICC the delegate stated[9] that he considered the applicant had not complied with s 101(b) of the Act because:

   ·In he and Ms Gao’s combined Skilled - Independent (subclass 189) visa application form, he claimed Ms Gao had undertaken an English language test within the preceding three years, claiming this had been an IELTS test she sat on 11 February 2017, in which she achieved “proficient” English language level.

   ·However, the IELTS test report which was provided in support of the application, issued in Ms Gao’s name for an IELTS test undertaken on 11 February 2017, contains the photograph of another person, indicating that another person undertook the test on Ms Gao’s behalf.

   •I consider if Ms Gao had actually sat the IELTS examination as claimed, she would have been issued a genuine test report with her photograph on it, and there would have been no need to submit a bogus test report. I consider the submission of a bogus test report with the application, and that Ms Gao had someone else sit the test for her, indicates the answers the visa holder provided in his combined visa application are incorrect, that Ms Gao did not undertake that test, nor achieve those results, as claimed.

   [9]    ibid

5. The NOICC noted that on 25 June 2020 the applicant was granted a Resident Return (Subclass 155) visa, which had the effect of ceasing and replacing his secondary Skilled – Independent (Subclass 189) visa. However, pursuant to s 107A of the Act, non‑compliance in relation to the applicant’s Skilled visa can constitute grounds for cancellation of his Resident return visa granted on 22 June 2020.

6. Having reviewed the particulars contained in the NOICC the Tribunal is satisfied that the NOICC accurately sets out the relevant breaches of ss 101(b) and 103 of the Act as claimed by the Department.

7. On 23 July 2020 the applicant replied to the NOICC[10] requesting that he be provided copies of the documents referred to by the Department in the NOICC to be able to properly respond to the NOICC. On 23 July 2020 the Department advised the applicant that it considered that all the relevant information had been provided in the NOICC to enable him to respond and that no further documents would be provided. It stated that it was open to the applicant to request the document referred to in the NOICC through Freedom of Information.[11] The applicant did not respond further to the Department and did not indicate to the Department if he agreed or disputed the breach of s 103 and s 101(b) of the Act as claimed.[12]

   [10] Record of Decision of Whether to Cancel Under Section 109 of the Migration Act 1958 dated 4 August 2020; AAT file No 2012429 Doc ID: 7523730

   [11] ibid

   [12] ibid

8. Therefore, having considered the documentary evidence before the Tribunal and the applicant’s own evidence in relation to the death of his mother and siblings by anti‑Baathist militants, the Tribunal finds that the applicant did provide incorrect information to the Department in relation to his Protection visa application. As such, the Tribunal finds that there was non-compliance with s 101(b) of the Act by the applicant in the way described in the s 107 notice.

The applicant’s evidence

1. In addition to giving evidence before the Tribunal the applicant also provided a statutory declaration dated 1 December 2023[13] together with a Tribunal Book containing all relevant supporting documentation.[14]

   [13]  Applicant’s statutory declaration dated 1 December 2023 AAT file No 2012429 Doc ID: 11849111

   [14]  Applicant’s Tribunal Book; AAT file No 2012429 Doc ID No’s: 11860532, 11860624, 11860703, 11860800, 11860975

2. The applicant was born in China on 31 October 1987 and first arrived in Australia in July 2008 as a student to study a Bachelor of Commerce at Deakin University. The applicant graduated with a Bachelor of Commerce (Finance) on 13 December 2012.[15]

   [15] Applicant’s Tribunal Book at p.152; AAT file No 2012429 Doc ID No’s: 11860532

3. While at university the applicant met Ms Gao. They commenced living together in or about July 2009 and were married on 24 November 2017 in China.[16] The applicant and Ms Gao have a daughter who was born in Australia on 8 April 2021.[17] The applicant’s daughter has never been to China.[18]

   [16] Applicant’s statutory declaration dated 1 December 2023 at [4]; AAT file No 2012429 Doc ID: 11849111

   [17]  Op Cit [13], [100]

   [18]  Op Cit at [100]

4. In March 2017 the applicant applied as a secondary applicant under Ms Gao’s Skilled visa for permanent residency.

5. On or about 30 June 2020 the applicant received the NOICC, and his permanent residency was formally cancelled on 4 August 2020. In or about November 2020 Ms Gao applied for citizenship.

6. The applicant’s evidence was that Ms Gao had previously made multiple attempts at the IELTS before making the Skilled visa application.

7. In her attempts she had obtained at least 7 in each of the components. The applicant provided copies of previous test results in which Ms Gao had achieved at least 7 points as claimed.[19] In or about February 2017, the applicant was informed by Ms Gao that she had passed the test and was shown the test result. The applicant’s evidence was that he noted that she had passed but did not take any notice of the photo or the test venue.[20]

   [19]   Op Cit at [15]-[16]

   [20]   Op Cit at [19]

8. The applicant’s evidence was that he had no reason to doubt that she had passed the test. His evidence was that Ms Gao graduated from Deakin University with a Bachelor of Commerce in November 2010 and he graduated from Monash University with a Master of International Business in December 2012. In addition, she gained a Master of Business Administration from Federation University in November 2015. The Skilled visa application stated that Ms Gao holds the qualifications as described by the applicant.[21]  In such circumstances the applicant was at a loss as to why Ms Gao had arranged for a false document in relation to the Skilled visa application. His evidence was that he had no knowledge that the document was bogus.

   [21]   Application for Skilled Visa: Dept File No BCC20201815567 Doc ID 7606467

9. The applicant is the owner and operator of a number of retail food outlets in Victoria. The applicant commenced his first business, known as Arrow Star Investments Trust (‘Arrow’), in Fountain Gate Shopping Centre in August 2015.[22] The applicant was engaged in the day-to-day management of Arrow. The financial accounts provided by the applicant show that it had a total income of approximately $480,000 for the financial year ended June 2022.[23] On 1 October 2022 the applicant sold 50% of Arrow to staff and other investors.[24]

   [22]  Op Cit at [27]

   [23]  Applicant’s Tribunal Book at p.104; AAT file No 2012429 Doc ID No’s: 11860532

   [24]  Applicant’s statutory declaration dated 1 December 2023 at [32]; AAT file No 2012429 Doc ID: 11849111

10. Since 2021 the applicant has started 6 other businesses and established a central kitchen and office/warehouse in Oakleigh, Victoria. The purpose of establishing a central kitchen is to standardise the process and stabilise the business by employing staff on a full-time basis rather than on a temporary or casual basis.  Each of the applicant’s businesses are generally operated through a company acting as the discretionary trustee. The ownership of each business is reflected by the shareholding of each company and trust.  The applicant’s evidence was that the money used to invest in each of his businesses has been derived from several sources including:[25]

    ·A gift of $400,000.00 from his in-laws to help purchase a home in Bullen, Melbourne.[26]

    ·A balance of $581,759.95 from refinancing and subsequent sale of the Bullen home.[27]

    ·Proceeds of sale of heritage vehicle numberplates of approximately $550,000.00. The applicant claims to have purchased and sold heritage numberplates No 6060, 775, 9191, 7555.[28] 

    [25] Op Cit [40]

    [26] Applicant’s Tribunal Book at p.450; AAT file No 2012429 Doc ID No’s: 11860532

    [27]  Op Cit 456

    [28] Op Cit 457-463

11. The applicant provided relevant financial statements in relation to the following businesses in which he has an interest:[29]

    (a)Dragon Hot Pot Burwood – The applicant commenced the business in January 2022 with three other business partners. The applicant invested $189,000.00 into the business and owns 30% of the business.[30]  It had a total income of approximately $950,000.00 for the financial year ending June 2022 and employs around 20 people. 

    (b)Nene Chicken Altona – The applicant commenced the business in March 2022. He invested $140,000 into the business and owns a 16.8% interest of the business. The business had a total income of around $185,000.00 for the financial year ending June 2022 and employs 20 people.

    (c)Mint Skin – The applicant commenced the business in February 2023. He invested approximately $120,000.00 and owns 36% of the business. The BAS for April to June 2023 shows that the business had a total income of $220,000. It currently employs 6 people.

    (d)Mansae Korean BBQ – The applicant commenced the business in February 2023. He invested approximately $240,00.00 and owns 17.15% of the business. The BAS from April to June 2023 show that the business had a total income of about $650,000.00. It currently employs 39 people.

    (e)Phoenix Kitchen – The applicant opened the business in July 2023. He invested $180,000.00 and owns 20% of the business. No financial statements were available but the business currently employs 23 people. The applicant’s evidence was that he and his business partner are currently searching for an appropriate location to commence another Phoenix Kitchen business.[31]

    (f)Rice Workshop – In July 2023 the applicant executed a lease to operate a business in the food court at Melbourne University. At the time of the hearing the business premises was under renovation and the business had not commenced trading. The applicant claims he had invested $75,000.00 and owns 15% of the business.

    (g)HeyTea – The applicant had entered into a head of agreement for a bubble tea business in Elizabeth Street, Melbourne. The applicant claims that his investment in the business will be $600,000.00 for which he will be entitled to receive a 30% share of the business.

    [29]   Applicant’s statutory declaration dated 1 December 2023 at p.5-9; AAT file No 2012429 Doc ID: 11849111

    [30]  Applicant’s statutory declaration dated 1 December 2023 at [44]-[49]; AAT file No 2012429 Doc ID: 11849111

    [31]   Op Cit [88]

12. The applicant has been in Australia for approximately 15 years, first as a student and later as owner and operator of restaurants/several food retail outlets. During that time the applicant has developed significant ties to the community, initially as a student and later through his business interests as an employer and as an owner and operator of several restaurants and food retail outlets. In addition, as an active member of the community, the applicant makes regular donations to charities including the Salvation Army and Red Cross. In addition, he is engaged in several local clubs, including the local tennis club and activities involving his young daughter.[32]

Conclusion on non-compliance

[32]   Op Cit [91]-[103]

1. Therefore, based on the applicant’s evidence and having considered the documentary evidence before the Tribunal, the Tribunal finds that the applicant did not provide correct information to the Department in relation to Ms Gao’s IELTS test. As such, the Tribunal finds that there was non-compliance with s 101(b) and s 103 of the Act by the applicant in the way described in the s 107 notice.

Should the visa be cancelled?

1. 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).

2. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (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 visa holder to the community.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[33] The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures 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.

   [33]   MIAC v Khadgi (2010) 190 FCR 248.

2. The Tribunal’s consideration of these matters is as follows.

Correct information

1. The IELTS test report undertaken on 11 February 2017 and provided to the Department with Ms Gao’s Skilled visa application contained a photograph of Ms Song, indicating that she undertook the test on Ms Gao’s behalf. As such, it indicates that the IELTS report is a bogus document as defined in s 5(1)(a) of the Act because it was purported to have been, but was not, issued in respect of Ms Gao. The applicant conceded to the Tribunal that Ms Gao had provided a bogus document to the delegate. His evidence was that he believed that she had completed the test and was not aware that the Department had been provided a bogus document.

2. Section 110 of the Act provides that where incorrect information is provided as part of a visa application, the answers constitute incorrect information even though the person who gave or provided the answer, or caused the answer to be given, did not know it was incorrect.[34] In addition, s 111 provided that the cancellation provisions under s 109 of the Act apply whether the non-compliance was deliberate or inadvertent.[35] Therefore, despite the fact that the applicant was not aware that the document was bogus, it still constitutes incorrect information under s 101(b) and s 103 of the Act by virtue of the operation of s 100 and s 111 of the Act.

   [34]  Section 100 of the Act

   [35]  Section 111 of the Act

3. On 14 November 2017 the delegate assessed Ms Gao as having met the primary and secondary requirements of the Skilled visa including having competent English or higher. As such the Tribunal finds that the delegate relied on Ms Gao’s IELTS test result in assessing the Skilled visa application. As a result, the Tribunal places significant weight on this consideration in favour of cancelling the visa.

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

1. The Tribunal notes that in addition to Ms Gao’s competency in English it was also required to consider other conditions in assessing the Skilled visa application. These include her educational qualifications, specialist education requirements and other skills. Therefore, while the incorrect information is significant, in circumstances where the delegate was required to consider other conditions, the Tribunal finds that the decision to grant the Skilled visa was not based solely on the incorrect information provided.

2. The Tribunal places some weight on this consideration in favour of cancelling the applicant’s visa.

The circumstances in which the non-compliance occurred

1. The applicant’s evidence was that at the time the Skilled visa application was made, he believed that the information was correct and that the document provided was correct. The Tribunal notes that s 100 and s 111 of the Act provide that irrespective of whether the incorrect information is provided deliberately or inadvertently, it still represents a breach of ss 101(b) and 103 of the Act.

2. Based on the applicant’s evidence to the Tribunal and having considered the contents of the applicant’s visa application,[36] the Tribunal finds that the incorrect information significantly affected the assessment of the applicant’s refugee application.  The Tribunal gives this consideration significant weight in favour of cancelling the applicant’s visa.

The present circumstances of the visa holder

[36]  Application for Skilled Visa: Dept File No BCC20201815567 Doc ID 7606467

1. The applicant has been residing in Australia since July 2008. He was educated in Australia and subsequently has established a business in the retail food industry. Through the business he owns and operates together with his business partner, the applicant is responsible for the employment of a significant amount of people.

2. In addition, Ms Gao holds higher education qualifications from Deakin University, Monash University and Flinders University. As such she appears to be competent in English. As such it appears from the evidence available to the Tribunal that she would be able to pass the IELTS test without having to resort to another person taking the test for her. The applicant’s evidence was Ms Gao is competent in English and that he was not aware of the incorrect information being provided as part of the Skilled visa application. He was not able to explain to the Tribunal why Ms Gao would revert to providing a bogus document in circumstances where she was clearly competent in English.  

3. The Tribunal gives this consideration considerable weight against cancelling the applicant’s visa.

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

1. The applicant’s evidence was that he was not aware of the incorrect information and did not become aware of the information until receiving the NOICC. The applicant has engaged with the Department and the Tribunal in a respectful and timely manner and has acknowledged and accepted there has been non-compliance with ss 101(b) and 103 of the of the Act.

2. The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

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

1. There are no instances of non-compliance known to the Tribunal. The Tribunal gives this consideration little weight against cancelling the applicant’s visa.

The time that has elapsed since the non-compliance

1. The non-compliance occurred approximately 7 years ago. Since that time the applicant has completed his university studies and developed a successful retail food outlet business in Victoria that employs a significant amount of people. Given the passage of time and the fact that the applicant has established himself within the community in Australia, the Tribunal gives this consideration considerable weight against cancelling the applicant’s visa.

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

1. There is no evidence before the Tribunal to suggest that the applicant has breached the law since the non-compliance. The Tribunal gives this consideration some weight against cancelling the applicant’s visa.

Any contribution made by the visa holder to the community

1. The applicant submits that he has made a significant contribution to the Australia community. The applicant pointed to the fact he is responsible for the employment of many people through the operation of his restaurants and retail food outlets. The applicant makes regular contributions to charity and is engaged in his local tennis club.[37] In addition, the applicant is engaged in the community through his daughter attending a local learning centre.[38]  The Tribunal gives this consideration some weight in favour of not cancelling the applicant’s visa.

Other considerations

[37]   Applicant’s statutory declaration dated 1 December 2023 at p.9-10; AAT file No 2012429 Doc ID: 11849111

[38]   ibid

1. While the factors specified in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[39]  As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the circumstances of a case.[40]  The government policy includes:

   a.Whether there are persons in Australia whose visas would, or may, be cancelled under s 140:

   There are no consequential cancellations in this case.

   b.Whether Australia has obligations under relevant international agreements that would or may be breached because of the visa cancellation:

   It is government policy that consideration for cancellation of visas must consider any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[41]

Best interests of the applicant’s child and family unity principles

[39]  MIAC v Khadgi (2010) 190 FCR 248

[40]  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (‘Re Drake No 2’)

[41]  PAM3 Visa cancellation instructions - General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)

1. As a signatory to the Convention on the Rights of the Child (CRC), Australia has certain obligations including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).  In this case, the applicant’s daughter was born in Australia in 2021. She has never lived in China and has never left Australia. The applicant’s evidence is that she predominately speaks English at home. The applicant’s daughter currently attends an early learning service and is confident and familiar with her surroundings. The applicant stated that if his daughter is forced to relocate to China she will suffer because of not being able to speak Chinese and will suffer culturally, having been raised in Australia.

2. While the Tribunal accepts that the applicant’s child may suffer socially by being relocated to China, it notes that she is very young and is likely to adapt more easily to a new environment. In addition, the applicant’s parents remain in China and as such she would be closer to relatives upon her return. As a result, the Tribunal places some weight in relation to this consideration in favour of not cancelling the applicant’s visa.

Australia’s non-refoulement obligations

1. There is no evidence that the cancellation of the applicant’s visa would lead to his removal in breach of Australia’s international obligations of non-refoulement. The Tribunal gives this factor no weight towards not cancelling the visa.

Mandatory legal consequences to a cancellation decision

1. If the visa is cancelled the applicant will become an unlawful non-citizen and may be held in detention under s 189 of the Act and be removed under s 198 of the Act if he does not voluntarily depart Australia.

2. In addition, the applicant will be subject to s 48 of the Act which means that he will have limited options to apply for further visas in Australia. The applicant will be subject to Public Interest Criterion 4013 because of the cancellation. Nevertheless, the applicant will be entitled to apply for a Bridging E visa to remain lawfully in Australia while finalising departure arrangements.

3. The Tribunal gives some weight to this consideration in the applicant’s favour.

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

1. The degree of hardship that would be caused to the applicant if his visa remains cancelled would be significant due to the loss of his business interests in Australia. The Tribunal acknowledges that the applicant has lived in Australia since his arrival in 2008, and as a result, it accepts that it will be difficult for him to re-establish himself in China. In circumstances where the applicant as a business operator has ongoing obligations to both landlords and employees. If he is forced to return to China because of the cancellation of his visa it is likely that he will personally suffer significant financial loss in addition to causing a significant financial loss or burden on third parties within the community including landlords, business partners, financiers and employees.

2. .

3. Having had regard to the applicant’s circumstances, the Tribunal accepts that he will suffer a high degree of hardship if his visa is cancelled. The Tribunal acknowledges that the applicant has lived in Australia since his arrival in 2008. As a result, it accepts that it will be difficult for him to adjust to a life China.

4. Having regard to these considerations, the Tribunal accepts the cancellation of the applicant’s visa resulting in his detention or return to China is likely to cause the applicant severe hardship. Accordingly, the Tribunal gives these considerations significant weight towards not cancelling the visa.

Exercise of discretion

1. The Tribunal has carefully considered the above factors, some of which are in favour of cancelling the visa, others against. The Tribunal has found the applicant provided incorrect information in the Skilled visa application in relation to Ms Gao’s IELTS test.

2. Weighed against this (and other considerations) are the Tribunal’s findings that the applicant could face significant difficulties and hardship if his visa is cancelled including loss of his business and significant financial loss and hardship to other third parties within the community. The applicant has been in Australia for a significant amount of time. He has been educated in Australia and has established a business with other partners and investors of owning and operating a chain of restaurants and retails food outlets.  He is responsible for the employment of the businesses staff and the ongoing viability of each of the retail food businesses under his control. 

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

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Jason Pennell

Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Bogus 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).

8. Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)     an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c)      information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

9. Notice 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.

1. Decision 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.

2. Cancellation 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.