Fan (Migration)

Fan (Migration) [2022] AATA 940 (18 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Xiaoqing Fan
REPRESENTATIVE:  Ms Rong Zhang (MARN: 0426182)
CASE NUMBER:  2111155
HOME AFFAIRS REFERENCE(S):          BCC2021/1427475
MEMBER:R. Skaros
DATE:18 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 18 February 2022 at 4:45pm
CATCHWORDS
MIGRATION – cancellation – Skilled – Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – incorrect answers and bogus documents provided in visa application – secondary applicant as member of family unit – de facto partnership, phone bills and bank statement – forensic examination found address on documents did not match registered addresses – application made by claimed partner and agent – applicant’s role in contriving evidence – information given in citizenship application – admission that claimed relationship never happened – study and work history – value of work to current employer – letters of support – potential hardship – application for another subclass visa in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101, 103, 107, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 189.211, Schedule 4, criterion 4020(1)
CASE
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

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 delegate found that the applicant had not complied with s 101 and s 103 of the Act, and, after considering the circumstances in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations), decided that the applicant’s Subclass 189 visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Prior to the hearing, the Tribunal received a submission from the representative and supporting documents, including a statement from the applicant, various letters of support for the applicant, certificates relevant to qualifications and courses completed by the applicant, various documents for Phoenix Beauty George St Pty Ltd, for whom the applicant is currently employed, as well as other documents relevant to the applicant’s current circumstances and contribution to the community. The Tribunal has had regard to this material in its considerations further below.
The applicant appeared before the Tribunal by MS Teams Video on 3 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the following people: Ms Dong Mei Lin, Mr Mei Du, Ms Shujing Fang and Ms Xiao Qian Zhong. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative did not attend the hearing.
The Department’s file included a non-disclosure certificate issued under s 357A of the Act in respect of various documents, which included a document examination report, legal submissions for an unrelated matter and internal departmental documents which detailed the applicant and Mr Li’s immigration history, as well as the process for cancellation and contact details of various parties.
At the hearing, the Tribunal informed the applicant of the non-disclosure certificate, which was issued on 30 August 2021, and signed by a delegate of the Department. The Tribunal informed the applicant of the following reasons stated in the certificate for the non-disclosure:
·disclosure would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods; and
·where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant.
The Tribunal explained to the applicant that, notwithstanding the non-disclosure certificate placed on the relevant documents in the Department’s file, the Tribunal was still required to inform her of the information in those documents that is relevant to her case. The Tribunal accordingly gave the applicant general information about the nature of the document, as well as the specific details of any information that is relevant to her application. In relation to the document examination report, the Tribunal noted that the relevant information in that document, being the alteration of the residential addresses on documents that had been submitted with the Subclass 189 visa application, was set out in the Notice of Intention to Consider Cancellation (the s 107 notice) and replicated in the delegate’s decision record. In relation to the unrelated legal submission, the Tribunal noted that information in that document indicated that the applicant and Mr Li were not in a de facto relationship and that Mr Li had been offered a financial incentive to include her in his Skilled (Subclass 189) visa application. This information was also disclosed to the applicant in the s 107 notice and replicated in the delegate’s decision record. As for the internal departmental documents, the Tribunal did not consider any additional information in those documents to be material to the issues in the review.
When asked if she wanted to make any comments on the validity of the certificate, the applicant acknowledged that incorrect information had been provided and stated that she is sorry, she understands that it is her responsibly and obligation to check the accuracy of information, but she did not check all the material and it was her mistake. She stated that she was naïve to believe that she could obtain permanent residence so easily.
The Tribunal is satisfied that the certificate issued under s 375A of the Act is valid as it provides a valid public interest reason for the non-disclosure of the stated documents. In any case, the Tribunal is satisfied that the relevant information contained in those documents has been disclosed to the applicant in the s 107 notice and the applicant had an opportunity to respond to the information. Furthermore, the information was set out in the delegate’s decision record which was provided to the Tribunal with the application review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
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 and s 103 of the Act in the following respects.
On 4 April 2016 the applicant was included in the application for a Skilled Independent (Subclass 189) visa as a member of the family unit (de facto partner) of Guangxuan Li ([Date of birth]). In that application it was indicated that the applicant and Mr Li commenced a de facto relationship on 1 March 2015. The applicants declared that they understood that the giving of false or misleading information is a serious offence, that they have read and understood the information provided to them in the application, that they have provided complete and correct information in every detail in the form and on any attachments and they understand that if, after the visa has been granted, any documents are found to be fraudulent or information found to be incorrect, that the visas may be subsequently cancelled.
The s 107 notice indicates that the following documents were provided with the Subclass 189 visa application as evidence of the applicant and Mr Li’s cohabitation from 1 March 2015:
·Phone bill from Vodafone (for the mobile number ending in 272) purportedly sent to Mr Li at an address at Pope Street, Ryde NSW 2112 for the period from 01 February 2015 to 28 February 2015.
·Phone bill from Vodafone (for the mobile numbers ending in 688 and 779) purportedly sent to the applicant at the address on Pope Street, Ryde NSW 2112 for the period from 13 January 2016 to 12 February 2016.
·A joint bank account statement issued by the Commonwealth Bank purportedly sent to Mr G Li and Miss X Fan of the address at Pope Street, Ryde NSW 2112 for the period from 26 May 2015 to 30 June 2015.
Based on the above information and documents, as well as meeting other criteria, the applicant was granted the Subclass 189 visa on 4 July 2016 on the basis of being Mr Li’s de facto partner.
The s 107 notice provides that, following the grant of the visa, a forensic examination was conducted by the Department of the above listed documents, which found that the residential addresses shown on the above listed documents did not match the residential addresses officially linked and registered to those documents. On this evidence, the delegate considered that the documents provided were bogus as they appear to have been altered by a person without the authority to do so.
The notice further indicates that the applicant had applied for conferral of citizenship in Australia on 17 March 2018, which included details of her previous residential addresses. The applicant subsequently provided a Form 1023 (Notification of incorrect answers) in which she sought to correct the information provided regarding her previous residential addresses. In response to the question on the form as to why incorrect information was provided, the applicant provided the following explanation:
My ex-partner and I had conflicts and arguments around October 2016. Our relationship was up and down at this stage. I sometimes went to my friend’s home after the argument. Eventually we separated formally and peacefully in Sep 2017. I lived both places during this period, this is why I stated inaccurately in the initial application. After consulting with my solicitor, he confirmed that even though I moved out occasionally during the above-mentioned period, legally we were still in the De Facto relationship and still lived together.
On 25 July 2019 the applicant was invited to comment on information provided with the Skilled Independent (Subclass 189) visa application regarding the above stated phone bills and joint bank statement and the applicant’s claimed de facto relationship with Mr Li. The applicant was informed of the outcome of the forensic investigation, which revealed that the addresses on these documents provided were intentionally altered and the true addresses for the correspondence were: for Mr Li, Pope Street, Ryde NSW 2112, Hurstville NSW 2220, and Darling Street Kensington; and for the applicant, Port Road, Woodville SA 5011.
The s 107 notice also indicates that there was information before the Department suggesting that Mr Li had been offered a financial incentive to include the applicant as his de facto partner in his Skilled Independent (Subclass 189) visa application and that the applicant and Mr Li had never been in a de facto relationship.
Based on the information particularised above, the delegate formed the view that the applicant was not in a genuine relationship with Mr Li and that incorrect information and bogus documents had been provided to facilitate the grant of her visa.
Response to the information in the s 107 notice
In her response to the s 107 notice, the applicant stated that as the dependent applicant for the skilled visa, she was only asked to provide her passport, birth certificate and police clearance documents. She did not have much communication with the agent. She and Mr Li did what the agent advised them at the time because they thought he was a professional. She and Mr Li had had frequent arguments over trivial matters since October 2016 and decided to end their relationship in September 2017. After she received the letter dated 25 July 2019 in relation to the bogus documents and the de facto relationship, she was too embarrassed to ask Mr Li about the documents, so she contacted the agent who advised her to withdraw the citizenship application. The applicant stated that the agent was unable to provide her with any information or documents. The applicant stated that she followed the agent’s advice as she thought it was professional and in line with the circumstances of her application at the time. She stated that she and Mr Li shared some living costs and expenses, but she denied that there was any financial incentive as indicated in the s 107 notice.
In her written statement to the Tribunal, dated 19 January 2022, the applicant relevantly stated that she admits fault as she was tempted by the shortcut of getting permanent residence. She stated that the fake material was not tampered with by her, but she acknowledges that she was responsible for the legitimacy of the documents that were provided. She met the agent though a friend; he told her about a single guy he could introduce her to so they could apply for permanent residence together. She provided all genuine personal documents to the agent and did not tamper with any documents. The agent did not ask her to provide a phone number or a bank account statement and did not show her what documents had been submitted. She did not sign any documents.
At the hearing, the Tribunal discussed with the applicant the information particularised in the s 107 notice. The Tribunal explained to the applicant that the information strongly suggests she was not in a de facto relationship with Mr Li as claimed in the visa application and that bogus documents had been provided with the visa application.
In response, the applicant confirmed that she understood the information particularised in the s 107 notice and is fully aware of the allegations. She stated that she is sorry about the incorrect information provided and the material submitted. She stated that she was included in the material she submitted. She stated that she is sorry that she did not check the truthfulness of those documents. The applicant went on to state that, in March 2016, she was introduced to the ex-representative through a friend. The agent told her that he was a professional but that he would charge her additional fees to guarantee her permanent residency speedily and legally. Because she was the secondary applicant, the agent just told her to provide personal information and what she provided to the agent was all genuine. She stated that she was informed that the material she provided was legal and complied with the application.
The Tribunal put to the applicant that she was applying for the skilled visa as the partner of Mr Li and that she must have realised that, as she was not in a genuine relationship with Mr Li, she was not entitled to the visa as his de facto. The Tribunal queried the applicant’s logic that because she had provided genuine personal documents, this was sufficient to establish that she was in a genuine relationship with Mr Li. In response, the applicant stated that she regrets she applied for the visa on the basis of a relationship, however, she did not register the de facto relationship and she did not sign any documents. The Tribunal noted that it was an electronic visa application which had been lodged on her behalf by her former agent. In response, the applicant stated that she regretted her mistake and regrets that she did not seriously check her file during the process of the application.
The Tribunal asked the applicant about the fees paid for the application, to which she initially indicated she could not recall. However, when pressed further, she stated that the service fee was $40,000. The Tribunal expressed its view that this was a large sum of money to pay for a skilled visa and asked the applicant if she had asked the agent about the nature of the application that was being lodged on her behalf. In response, the applicant stated that the agent told her that they were professionals and that was why they were expensive. She stated that, at the time she was studying, and she did not have much experience with lodging applications and did not know what was considered a ‘normal’ charge. She thought the agent was a bit more expensive than other agents, but she did not check what other agents were charging. The applicant stated that the agent was introduced to her by a friend, and she trusted her friend. She trusted that the agent was a professional and legal and did not doubt them.
When asked if she had ever met Mr Li in person, the applicant stated that she had only met him once when they took a photo of their daily life. The Tribunal put to the applicant that she appears to have been complicit in contriving relationship evidence for the purpose of the visa application. The applicant stated that she did not understand the policy for the primary and secondary application because the agent only asked her to provide information and material and told her that the Department would only assess the main applicant’s professional occupation, and if everything was okay then she would ‘pass’. She stated that she did not think to check all the information and whether the material provided by the agent was reliable. She stated that she was seduced by the fact that she could get permanent residence securely and legally within three to six months.
The Tribunal has considered the relevant evidence before it and makes the following findings in relation to the grounds of cancellation specified in the s 107 notice.
The applicant has admitted that she was not in a de facto relationship with Mr Li. The evidence, as given by the applicant, is that sometime after March 2016 (when the applicant first met her former agent) the applicant was introduced to Mr Li. The applicant and Mr Li had only met on one occasion to take photographs together, presumably for the purpose of the visa application. The Tribunal accordingly finds, on the evidence before it, that the applicant was not in a de facto relationship with Mr Li from March 2015 as claimed in the visa application. The Tribunal also finds that the applicant did not reside with Mr Li at Pope St, Ryde NSW 2112. The Tribunal accordingly finds that incorrect answers (and information) were provided in the application form (and in relation to the visa application).
Given the above, the Tribunal finds that there has been non-compliance with s 101(b) of the Act.

Further to the above, the Tribunal finds that the above listed documents, namely the Vodafone bills and Commonwealth bank statement, are bogus documents because the Tribunal reasonably suspects (based on information in the document examination report and the applicant’s evidence that she and Mr Li had not lived together) that those documents are counterfeit or have been altered by a person who does not have authority to do so: s 5(1)(b). As the documents were provided in relation to the Subclass 189 visa application, the Tribunal finds that there has been non-compliance with s 103 of the Act.
The Tribunal has considered the applicant’s evidence that she did not complete the visa application form, that she did not provide the phone bills or bank statements, and that she did not tamper with or alter the information on the documents provided with the visa application. While the Tribunal is prepared to accept that it was the applicant’s former agent who provided the incorrect information and bogus document, this does not assist the applicant in this case because, on her own evidence, she had engaged her former agent to act on her behalf in relation to the visa application, including paying a fee for that service.
Section 98 of the Act provides that a non-citizen who does not fill in his or her application form 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. In addition, s. 100 of the Act 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.
In this case, the applicant engaged the agent to act on her behalf in relation to a visa application; in the circumstances, the effect of s 98 and s 100 of the Act is that the applicant is taken to have filled in the application form and she is ultimately responsible for any incorrect information that has been provided in relation to the application.
For the above reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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, which have been considered below, are set out in reg 2.41 of the Regulations.
The correct information
The correct information is that the applicant was not in a de facto relationship with Mr Li as indicated in the visa application. The applicant and Mr Li did not have a relationship which commenced in March 2015 and did not reside together at Pope St, Ryde as claimed.
When the above was discussed with the applicant at the hearing, she confirmed that she did not have any relationship with Mr Li and that they did not live together.
The Tribunal considers that if the correct information about the claimed relationship was known to Immigration, the applicant would not have satisfied the secondary criteria for the grant of the Subclass 189 visa. For these reasons, the Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.
The content of the genuine document (if any)
The documents in issue (as listed above) are the Vodafone bills and Commonwealth Bank statement which had been provided with the visa application. Examination of these documents found that the officially linked addresses on the documents for Mr Li were in Ryde NSW, Hurstville NSW and Kensington NSW and the officially linked address for the document in the applicant’s name was in Woodville SA.
When the above was discussed with the applicant at the hearing, she stated that the phone bills are hers and that Woodville SA was her residential address when she initially entered Australia. She did not update her address on the telephone bills. She stated that she was unsure about Mr Li’s phone bills and the bank documents. The applicant then stated that the former agent had not request any of these documents from her. When the Tribunal queried how the former agent could have obtained a phone bill in her name showing her previous address in Woodville SA, the applicant stated that one of the documents was hers but the other was not. When asked if she had given the agent one of the Vodafone bills, she claimed she had not and she was not sure how he had obtained the material.
The applicant has denied giving the former agent any documents belonging to her and it is not entirely clear how the agent came to be in possession of the originals of these documents. In any case, documents belonging to the applicant and Mr Li were altered and provided with the Subclass 189 visa application as evidence of the applicant and Mr Li’s cohabitation in Ryde NSW. The Tribunal considers that the applicant, who had engaged the former agent to act on her behalf, is ultimately responsible for any documents lodged in support of her application. For these reasons the Tribunal gives weight to this consideration in favour of cancelling the applicant’s 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
As noted above, the applicant applied for the Subclass 189 visa as a member of the family unit (de facto partner) of Mr Li. The Tribunal is satisfied that the decision to grant the applicant the Subclass 189 visa (as a secondary applicant) was based, in part, on the incorrect information that the parties were in a relationship since March 2015 and the bogus documents which suggested that the applicant and Mr Li had been residing together.
The Tribunal also considers that the decision to grant the applicant (and Mr Li) a Subclass 189 visa was based on the delegate’s satisfaction that the requirements in Public Interest Criterion (PIC) 4020 had been met by the primary visa applicant and each member of the family unit who is an applicant for the Subclass 189 visa: cl 189.211. PIC 4020(1) requires that there be no evidence before the Minister that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. Had the delegate become aware that a bogus document or false or misleading information was provided in relation to the Subclass 189 visa, the application would have been subject to further assessment by the delegate. This may have affected the outcome of visa application, and the applicant may not have been granted the Subclass 189 visa.
When the above was discussed with the applicant at the hearing, she expressed regret that she had not seriously supervised the material that was provided by the agent.
The Tribunal acknowledges the applicant’s apology, but nevertheless considers it significant that the decision to grant the applicant a permanent residence visa was based on a bogus document and incorrect information, and for this reason the Tribunal gives this circumstance significant weight in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the incorrect information and bogus documents were provided with the Subclass 189 visa application. The Tribunal had regard to the applicant’s evidence, both in her written statement to the Tribunal and at the hearing, about having been introduced to the agent in March 2016 who suggested that she apply for the visa as Mr Li’s de facto partner. The Tribunal also acknowledges the applicant’s evidence that it was the agent who provided the incorrect information and the bogus documents, however, the Tribunal does not consider the applicant to be a victim of the fraud devised by the agent and has formed the view that the applicant was, in part, complicit. On her own evidence, the applicant arranged to meet up with Mr Li so they could take photographs together. Her conduct demonstrates her preparedness to contrive evidence to achieve a migration outcome.
When the above concerns were discussed with the applicant at the hearing, she stated that she was seduced by the advice that she could get the visa legally within three to six months. She stated that the agent informed her that Mr Li was single, she was a student and single, and he suggested they meet, have a cup of coffee, take photographs, and perhaps become partners. The applicant stated that, to get the visa quickly, she was also interested in a relationship because she was single, but she regrets they could not become genuine partners. When asked who took the photographs of her and Mr Li and who provided them to the agent, the applicant stated that a friend did this, but she had not kept a copy of the photographs.
The Tribunal finds it somewhat difficult to accept that the applicant had any intention of meeting Mr Li with the view to commencing a genuine relationship with him. The parties only met on one occasion and the Tribunal has formed the view that the purpose of that meeting was to contrive relationship evidence (by way of photographs) for the purpose of the Subclass 189 visa application. It was convenient that they were both single, and it appears that Mr Li may have been induced by some financial gain while the applicant was ‘seduced’ by the prospect of securing permanent residence within a matter of months. The applicant denied giving a financial inducement to Mr Li in return for him including her in his visa application, but she was unsure of the arrangement between Mr Li and the agent.
The Tribunal considers that the circumstances of the non-compliance (as discussed above) weigh strongly in favour of cancelling the applicant’s visa.
The present circumstances of the visa holder
The applicant arrived in Australia on 11 July 2013 as the holder of a student visa. On 4 April 2016 she applied for the Subclass 189 visa on the basis of the claimed de facto relationship with Mr Li. She was granted that visa on 4 July 2016.
In her written statements to the Department and to the Tribunal, the applicant provided details of her studies and employment in Australia, including the contribution she has made through her employment. The applicant completed a Certificate III in Childhood Education and Care in 2017 and has provided evidence of this qualification to the Tribunal. The Tribunal has also received evidence of several First Aid courses completed by the applicant in Australia.
In relation to her employment in Australia, the applicant provided a large volume of supporting documents from her former employers (who have since retired) and her current employer. In her written statement to the Tribunal the applicant stated that she worked very hard at the shop of her former employers, who then strongly recommended her to the current employer (Phoenix Beauty). The applicant set out in detail her role with Phoenix Beauty and the contributions she has made to that company, which allowed it to overcome the difficulties faced as a retailer of health and beauty products during the COVID-19 pandemic. The applicant stated that she established the online store for the business, which included live presentations of Australian products for sale to local and Asian markets. The applicant taught herself graphic design and video editing skills and formed a small team for the online project. During online presentations, she has introduced many Australian products, including A2, Bellamy's, QV, Ostelin, Swisse and Blackmores. She is due to start another project on a new e-commerce platform in February 2022 and will need to recruit new staff from within Australia to undertake that project. The applicant stated that she enjoys working hard for her current employer and is committed to her career.
In submissions to the Tribunal, the representative stated that the applicant considers Australia home and that she has enjoyed the lifestyle. It was submitted that Australian companies (a list of which was provided) have benefited from the applicant’s livestreaming activities. It was submitted that the applicant represents the company and is authorised to sign agreements, services, and registration on behalf of the company with respect to the online store.
When asked about her current circumstances at the hearing, the applicant stated that she considers Australia home, and has only spent 50 days visiting China in the last five years. She stated that most of the time she has been working and studying in Australia. She has been very happy and feels quite fulfilled. She has become self-confident. She considers her colleagues (her team) to be like family. In her current employment with Phoenix Beauty, she has worked very closely with a small team to coordinate change in the business’s commercial methods due the impact of COVID-19. She established a new diversified sale method in the retail industry: online livestreaming, which she uses to promote large and small Australian brands. As part of the livestreaming project, she promotes Australia’s culture, lifestyle and equality, and visits the offices of the brands they want to promote online. The applicant stated that the promotion of Australian culture and products online has increased knowledge about Australia and more Asians will come to visit Australia after the borders reopen.
The applicant provided details of a new project that she is currently co-ordinating, which she stated will provide two or three job opportunities to locals. The applicant stated that her team and colleagues have worked well together and are a united team. She has put all her energy and time into her work in Australia and if the visa is cancelled and she has to return to China, she does not know what she will do. She stated that she likes the Australian lifestyle, she has integrated well in Australia, and after COVID-19 she continued with her charity work, including blood donation and assisting colleagues who have been affected by COVID-19.
The Tribunal acknowledged the evidence provided regarding the applicant’s online streaming activities. It also acknowledged that the applicant has a strong online following. The Tribunal asked the applicant why, given her promotional activities are largely conducted online, she could not continue those activities from anywhere in the world, including her home country of China. In response, the applicant stated that online streamlining needs to be conducted from Australia as she has to take photos of the local culture, local scenery and visit the local brands they are seeking to promote. The Tribunal observed that she has a team in Australia that work on the livestreaming projects and asked why another person in Australia could not perform the tasks that need to be undertaken in Australia, such as visiting scenery or livestreaming from the brand office, while she undertakes other promotional activities online from China. The applicant stated that the livestream was connected to the fans and she would not be able to have the same influence. She and her team conduct the livestreaming together, they go to the warehouses of the brands to show the strength of their operation and she needs to do this herself. Over the last year she has established a relationship with the fans, and they trust her opinion of the Australian brand.
When asked about her personal and family circumstances, the applicant gave evidence that she is currently single as she is focusing on her career. Her parents are in China (Liaoning Province) and work as ‘ordinary clerks’. Her father works in a surgical department in a hospital. She stated that she had worked as a nurse when she was in China, but that since leaving the country her certificate expired. She stated that she signed the dismissal of contract with the hospital and does not have medical care or super. She stated that she has put all her energy and focus on life in Australia. She has not thought about what she will do if she has to return to China. The Tribunal remarked that the applicant appears to be a highly motivated, hardworking and career driven person, and that these characteristics would serve her well in re-establishing herself and her career if she had to return to China. The Tribunal noted that since the beginning of the COVID-19 pandemic, nurses have been in very high demand and this would likely be the case in China. When asked if she could return to China and work as a nurse, the applicant stated that her certificate has already expired, and she would need to work for three to five years and attend an exam. She stated that she cannot renew her nursing certificate, and that her parents support her work in Australia.
The Tribunal has also had regard to the letters of support received from the applicant’s friends, colleagues and employers. It has also had regard to the oral evidence received at the hearing from the witnesses, some of whom had also provided written letters of support. The supporting evidence given is relevant to the Tribunal’s consideration of the applicant’s current circumstances, the circumstances of her employer and to the contribution made by the applicant to the community.
In her letter of support dated 20 January 2022, Ms Dong Mei Lin (the CEO of Phoenix Beauty), stated that the company had started as a small gift store and now has 18 stores across Sydney with two more expected to open in April and June 2022. She stated that the applicant was appointed as a Manager after an impressive 10-day trial. She found the applicant to be honest, capable, creative and passionate about the business. They sell Australian and New Zealand products to Chinese tourists and students and the applicant is very good at her job. The applicant won the Best New Manager Award in 2018 and the Best Manager Award in 2019. Ms Lin stated that the company has achieved significant growth since the applicant joined. The applicant actively donated and provided free masks to locals during Wildfires in 2019. She also created a new business to sell directly (via parcel) to China. She stated that the applicant has assisted local suppliers by promoting their products. Since May 2020, the applicant has conducted over 144 livestreams and has attracted streaming audiences totalling up to 576,000. She stated that the applicant has been focused on the livestreaming store due to its success and has a team of five people. Ms Lin stated that they made the applicant a major shareholder of the company because she has been running the business and other shareholders cannot do her job. Ms Lin stated that the applicant deeply regrets her mistake, that the applicant is a core leader in the company, is one of five area managers in charge of three retail stores, in addition to another store that is opening in June at Market City, and the applicant is also the main operator of four e-commerce shops.
At the hearing, Ms Lin reiterated much of the evidence provided in her written statement. Ms Lin stated that she was shocked and sorry to hear about the applicant’s visa situation and she is worried about who will take over the applicant’s projects if the visa is cancelled. Ms Lin stated that it will be very difficult to find someone with the applicant’s skills set, especially in livestreaming. She stated that the applicant’s skills as a nurse and her knowledge of the products means she can answer all the viewer’s questions about the products. Ms Lin stated that the applicant works late into the night to attract the attention of the Chinese market and that she promotes Australian products to Chinese consumers. She undertakes the marketing and advertising for these products and helps medium to small brands expand. Ms Lin also gave evidence about the upcoming livestream project which she stated would result in the company hiring another two or three people in Australia.

The Tribunal has also had regard to the letter from the General Manager of Phoenix Beauty, Mr Mei Du, dated 26 January 2022. He stated that he has known the applicant since she used to work as a store manager for one of their wholesale customers. He provided details of the applicant’s work ethic and stated that she will be promoted to an Area Manager. He stated that the applicant has promoted many reputable Australian brands to overseas customers.
In addition to the above, at the hearing, Mr Du gave evidence about the applicant’s responsibilities within the Phoenix Group, which included co-ordinating and overseeing the livestream business. He stated that the applicant was invited to be a partner and shareholder of the business last year because of her outstanding performance and her integrity. Mr Du stated that while the applicant works in a team of people, she was the most important person. She has assisted large, medium and emerging Australian brands, for whom they are an authorised distributor, to grow their export markets. Mr Du stated that the applicant was becoming an opinion leader on products on social media platforms, like a blogger or youtuber. He stated that the applicant has more than 24,000 followers and active fans of her own and that her livestreaming attracts an audience of 600,000 viewers. He stated that it is not easy to find someone in Australia who is dedicated and highly motivated and she would not be easy to replace. He stated that if her visa is cancelled it would be a great loss for Australian small and medium brands and that if she goes back to China she may focus on other brands, including competitors from Europe, America, Japan, and Korea, as there are so many brands in China. Mr Du suggested that the applicant would not achieve the same results for Australian brands if she had to livestream from China.
The Tribunal has also had regard to the letter from the applicant’s colleague and housemate, Ms Shujing Fang, dated 21 January 2022. Ms Fang stated that she has known the applicant for over three years and that the applicant is nice to all the co-workers. Ms Fang stated that the applicant has impressive childcare skills and experience and has taught Ms Fang how to care for her baby. She stated that the applicant has taught herself how to livestream and video edit in her spare time. She stated that the applicant regrets her mistake, feels guilty and will continue to undertake charity work. At the hearing, Ms Fang reiterated much of the evidence in her written letter of support. She added that the applicant has used her skills as a nurse to assist others, she contributes to the community and is a kind person who can be trusted.
The Tribunal has had regard to the letter of support from the applicant’s colleague, Ms Xiaoqian Zhong, dated 26 January 2022. Ms Zhong, who is an Area Manager with Phoenix Beauty, stated the applicant is a kind and generous person who is liked by all her colleagues. She stated that the applicant teaches others and has explored new ways of improving sales following the downturn experienced due to COVID-19. She stated that the applicant feels guilty and that she will continue to do more public welfare to make up for her mistake. In her evidence at the hearing, Ms Zhong reiterated what was in her written statement. She also provided examples of the training provided by the applicant to staff, the support she provides staff and the dedication the applicant has demonstrated to her job.
The Tribunal has also had regard to the written statement dated 26 January 2022 from Yang Song, the Director of Phoenix Beauty, which set out the history and growth of the business. Yang Song stated that the applicant had assisted the business to achieve an increase in sales revenue. The letter from the business’ accountant dated 24 January 2022, to which the Tribunal has had regard, confirms that the business had increased its revenue in the 2018/2019 and 2019/2020 financial years. Yang Song attributed the business’ growth to the livestreaming activities developed by the applicant which have been used as a platform to sell Australian and New Zealand products to the Chinese market. Yang Song stated that the company plans to extend its market share in China and Southeast Asia and that the review applicant will oversee this. Evidence was also provided to the Tribunal which confirms that the company has opened accounts with popular online platforms such as Xiao Hong Shu and Taobao Global Purchase E-Commerce. Yang Song stated that if the company does not have the live-streaming business and the applicant is unable to continue her contribution, the company will have to close that business, and this will likely result in the loss of three local jobs. He stated that the applicant feels genuine regret, and she is the only staff member who can operate the live streams.
The Tribunal has also had regard to other company documents provided, including the ASIC Current Company Extract, authorisation certificates, training information and images from the company’s online store, details of the livestream timetable and schedule for the 2021/2022 financial year. It also had regard to the letter of support dated 21 January 2022 from her previous employers Yuelin Xu and Furong Wang (former owners of Regal Group Pty Ltd) confirming the applicant’s employment as Store Manager prior to joining the Phoenix Beauty Group.
At the hearing, the Tribunal discussed with the applicant the evidence provided by her employer, colleagues and friends in support of her review. It acknowledged that she was a valuable employee (and shareholder) of Phoenix Beauty and asked whether she had discussed with her employer any alternative visa pathways based on her employment and/or ownership interest in Phoenix Beauty. The applicant stated that she has been anxious about the cancellation of her visa and is not sure what will happen to her project and the employees. She does not want to give up easily and wants the opportunity to remain in Australia and serve the community.
The Tribunal has considered all the evidence before it regarding the applicant’s current circumstances, including the circumstances of her employment and the effect of the visa cancellation on her employer.
The Tribunal accepts that the applicant has resided in Australia for over eight years, during which she has studied and worked. The Tribunal also accepts that the applicant has dedicated herself to her employment, and that she currently holds a senior position as a Manager with her employer (Phoenix Beauty). The Tribunal accepts that the applicant would like to remain in Australia and continue her career. It also accepts that the applicant’s parents support her work in Australia. The Tribunal also accepts that the applicant has established a close group of friends in Australia, that she has assisted her friends and colleagues and that she is well liked by her team. The Tribunal accepts that cancellation of the applicant’s visa may cause her emotional and financial hardship. These factors weigh in favour of not cancelling the visa.
The hardship that may be experienced by the applicant is not, in the Tribunal’s view, insurmountable. The applicant, as the Tribunal has observed, is a highly motivated, career driven, resourceful and confident person. These traits will greatly assist her in re-establishing herself and her career if she returns to China. The Tribunal accepts, based on the documentary evidence provided, that the applicant’s employment as a nurse in China was terminated in 2013 and that her certificate as a nurse has expired, however, the applicant has been able to acquire new skills while in Australia, including management, training, product knowledge, sales and livestreaming over the internet, which she could apply to re-establish a similar career in China.
In relation to the hardship that may be experienced by the applicant’s employer, which the Tribunal considers is inextricably linked to the applicant’s present circumstances, given she is a shareholder of the business, the Tribunal has considered the evidence as follows.
The Tribunal accepts that the applicant is highly valued by her employer and that her employer attributes the success of the business, including the increase in sales, to the applicant’s hard work and her innovative approach to sales and marketing. The Tribunal accepts that the applicant was made a shareholder of Phoenix Beauty due to her contribution to the business. It accepts that the applicant has developed a successful online livestreaming broadcast, which is used to promote Australian products to overseas markets. The Tribunal accepts that the applicant’s online streaming activities have assisted small, medium and emerging Australian business to market and sell their products to overseas markets. The Tribunal is also prepared to accept that it would be difficult to replace the applicant and that if her employment is not continued, this may jeopardise upcoming projects and lead to a reduction in sales and the loss of employment for a few locals. The Tribunal accepts that if the visa is cancelled and the applicant is unable to remain in Australia, financial hardship may be experienced by the company and the applicant as she is a shareholder in the company. These circumstances weigh in favour of not cancelling the 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
It was noted in the decision record that the applicant, in response to the s 107 notice, denied that there was non-compliance and did not provide the correct information to the Department. On review, however, the applicant admitted that incorrect information and fraudulent documents had been provided with the application. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
The Tribunal is not aware of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The non-compliance occurred when the visa application was lodged, on 4 April 2016. Almost six years have passed since the non-compliance, which the Tribunal does not consider to be a particularly long time. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal which indicates any breaches of the law since the non-compliance. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any contribution made by the holder to the community
The Tribunal accepts, on the material before it, that the applicant has made donations to a women’s association and that she has donated blood. In her written statement the applicant indicated that she gave out free sanitiser to nearby shops during the pandemic and delivered household items to friends and colleagues during the quarantine period. The Tribunal has also had regard to the supporting evidence from the applicant’s employer, colleagues and friends stating that the applicant is a hardworking, helpful and caring person. The Tribunal accepts that the applicant has also assisted many of her colleagues and that she is well liked by those who have come to know her.
The Tribunal accepts that the applicant has made contributions to her community through her employment. At the hearing the applicant stated that she has contributed to the community by working and paying tax. She has developed a project at the company which will create two or three job opportunities. She has used her livestreaming skills to increase knowledge of Australian brands and has used her nursing skills to help others in need. The Tribunal accepts the applicant’s evidence regarding her contribution to the community and gives this consideration some weight in favour of not cancelling the visa.
While the above 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 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.
Whether there would be consequential cancellations under s 140
The applicant was granted the visa on the basis of satisfying the secondary criteria as a member of the family unit of Mr Li. The cancellation of her visa, as a secondary applicant, would not by operation of law (under s 140 of the Act) result in the cancellation of the visa of any other person. This consideration weighs neither in favour of nor against cancellation.
Whether there are children whose interests would be affected by cancellation
There are no children whose interests would be affected by the cancellation of the applicant’s visa. This consideration weighs neither in favour of nor against cancellation.
Whether the cancellation 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 has not claimed, that cancellation of her visa would lead to a breach of Australia’s non-refoulement obligations. The applicant’s parents reside in China and she does not have any close family members in Australia; as such, the cancellation would not be in breach of family unity obligations. This consideration weighs neither in favour of nor against cancellation.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening
In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if she does not depart Australia within the validity of any bridging visa she currently holds or if she is not granted another visa to remain in Australia. It was noted in the decision record that the applicant has a pending application for a resident return visa; on this basis the applicant may be eligible to remain in Australia (on an associated bridging visa) until that application is determined.
The Tribunal acknowledges that if the visa is cancelled the applicant will be affected by s 48 of the Act, which (without the Minister’s intervention) limits the types of visas she can apply for onshore. The applicant may also be subject to an exclusion period in relation to future visa applications.
The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation and gives this consideration limited weight in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
As discussed above, the Tribunal accepts that cancellation of the visa may cause emotional and financial hardship for the applicant. It may also cause financial hardship to the applicant’s employer and to a few of the employees in the business, who may lose their job. These are all factors which, as considered above, the Tribunal has given weight to in favour of not cancelling the visa.
Conclusion
The Tribunal has carefully considered all the evidence before it and weighed up the circumstances in favour of not cancelling the visa against those in favour of cancellation. While the applicant’s current circumstances, including the circumstances of her employer, her contribution to the community and the hardship the cancellation may cause weigh in favour of not cancelling the visa, the Tribunal considers that these are outweighed by the circumstances (as discussed above) in favour of cancellation. The Tribunal considers that the integrity of Australia’s migration program relies on applicants to provide correct information and genuine documents. In this case, information was provided with the visa application which was incorrect, and documents were provided which were bogus, and this led to the grant of a permanent residence visa to which the applicant was not entitled. These factors, together with other circumstances in favour of cancellation, lead the Tribunal to conclude that the Subclass 189 visa should be cancelled.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled -Independent visa.
R. Skaros
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 940

18 February 2022

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