Fan (Migration)

[2021] AATA 3338

Fan (Migration) [2021] AATA 3338 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiong Fan

CASE NUMBER:  2018334

HOME AFFAIRS REFERENCE(S):          BCC2018/418832

MEMBER:Kira Raif

DATE:2 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

Statement made on 02 September 2021 at 11:11am

CATCHWORDS
MIGRATION – cancellation – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – incorrect answers and bogus document provided with visa application – English language test within 36 months before date of invitation – forensic facial image comparison found photo on test report and photo provided with application do not represent same person – discretion to cancel visa – applicant arranged for classmate to test for him – employment, social and community ties – applicant’s physical health, wife’s visa application and best interests of young Australian citizen child – Chinese citizenship and household registration laws – hardship and costs of travel and re-establishment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 101, 103, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 190.213

CASE
MIAC v Khadgi (2010) 190 FCR 248

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 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in June 1981. He was granted the Class SN Skilled – Nominated visa in January 2017. In September 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 17 December 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 1 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

   Did the Notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s. 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled Nominated Subclass 190 visa and when completing the application form, the applicant gave the following answers:

   a.the applicant stated that he had undertaken an English language test in the 36 months before the date of the invitation,

   b.the applicant gave details of the TOEFL iBT test which he stated he had completed in China on 18 June 2016. The applicant gave the Test Reference Number (TRN) and stated that his language ability was ‘competent’,

   c.the applicant signed a declaration that the information he had provided was complete and correct in every detail.

10. The applicant included with the application a copy of the TOEFL examinee score report with the TRN recorded in his application form, dated 18 June 2016.

11. The primary decision record indicates that  a Forensic Examiner compared the facial image of the applicant which was provided with his visa application and the facial image appearing on the TOEFL examinee report and concluded that these did not represent the same person.

12. In his response to the NOICC and oral evidence to the Tribunal the applicant concedes that he provided incorrect answers in the application form and a bogus document.

13. Having regard to the investigation carried out by the Forensic Examiner, as set out in the primary decision record, as well as the applicant’s own evidence, the Tribunal finds that the applicant’s answers to the questions on the form relating to his English proficiency were incorrect. That is, the applicant gave an incorrect answer when he stated that

    a.he had undertaken a language test in the 36 months before the invitation to apply,

    b.he had undertaken a specific TOEFL test in China on 18 June 2016 with the specified TRN,

    c.he had competent English,

    d.the answers he gave on the application form were correct.

14. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

15. Further, the Tribunal finds that the TOEFL examinee score report which the applicant provided with his visa application is a bogus document within the meaning of s. 5(1)(a) because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant gave, presented, produced or provided to an officer or the Minister, a bogus document. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

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

    Should the visa be cancelled?

17. 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).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

19. The correct information is that the applicant did not sit the TOEFL language test to which he referred in his visa application and did not demonstrate the level of English proficiency to which he referred in his visa application. This factor weighs heavily in favour of the cancellation.

    The content of the genuine document (if any)

20. The content of a genuine document would not show that the applicant had completed a TOEFL test in June 2016 with the competent proficiency in English. This factor weighs in favour of the cancellation.

    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

21. It is a requirement for the grant of the Subclass 190 visa contained in cl.190.213 that an applicant has competent English and English proficiency is demonstrated through undertaking a language test. It appears that if the applicant was unable to demonstrate competent English or proficient English (through undertaking a language test), the applicant may not have met the requirements of cl. 190.213.

22. The Tribunal finds (and the applicant concedes) that the decision to grant the visa was based in part on incorrect information and a bogus document. The Tribunal considers it significant that the applicant would not have been granted the visa if the correct information was known and if he could not demonstrate the requisite proficiency in English. That is a very significant factor in favour of the cancelation.

    The circumstances in which the non-compliance occurred

23. In his oral evidence to the Tribunal the applicant states that he was too busy with work and did not have time to prepare for the English test. The applicant states that he did undertake some study to prepare for the language test but he never took the test necessary for a Skilled visa application and he wanted to get the visa. The applicant told the Tribunal that he found a classmate who was willing to do the test for him and he gave that friend his own ID document for the test. The applicant states that he did not pay this person.

24. The Tribunal finds that the applicant had taken steps to deliberately mislead Immigration in arranging for another person to do the language test, pretending to be the applicant. The applicant knew it was a visa requirement to complete that test, he chose for his own reasons not to undertake the test and preferred to make arrangements for another person to sit the test on his behalf. The Tribunal finds that the breach was deliberate and intentionally done to enable the applicant to be granted the visa when he knew he did not meet the visa requirements (because he had never done the appropriate English test). The Tribunal finds that these factors weigh very heavily in favour of the cancellation.

    The present circumstances of the visa holder

25. In his response to the NOICC the applicant stated that he came to Australia in 2017 and married in March 2017. He has a child, born in May 2018 and his daughter is an Australian citizen. The applicant states that he has left his employment to care for his daughter. Prior to that he worked as a factory hand and he intends to return to work in the future to support his family. He submits that when he was employed, he worked hard and paid taxes. The applicant states that his wife works full-time and supports the family. She has made an application for a Partner visa, which has not been finalised.

26. The applicant refers to a health condition and states that he had undergone surgery in March 2019 which led to a long recovery. He explained in oral evidence to the Tribunal that due to his condition, he cannot work on a computer for a long time and his professional job requires him to work on a computer. The Tribunal accepts that this may be the case but the Tribunal is mindful that the applicant has not been working in his occupation in Australia so there may not be much difference in the type of work the applicant is able to do wherever he lives. The applicant told the Tribunal that there are no part-time jobs in China and he could not work part-time there as he does in Australia. The Tribunal accepts that the applicant’s employment is likely to be different in China compared to what it is in Australia but on the limited evidence before it the Tribunal is not satisfied these would be to the applicant’s disadvantage. Being different in this case does not equate to being worse.

27. The applicant states that the cancellation of the visa would affect his family and his daughter’s interests (which are addressed below). The applicant refers to his connections in Melbourne and states that he lost his connections in China. The Tribunal is prepared to accept that the applicant has formed connections in Australia and may have lost some connections in China but there is no obvious reason why the applicant cannot re-establish his connections in China and, at least to some extent, maintain his connections in Australia even if he is not physically present in Australia.

28. The applicant states that he had stopped his Medicare and superannuation in China and any expenses would be out of pocket. The Tribunal accepts that when the applicant migrated to Australia, he may have given up on certain benefits and services in China but there does not appear to be any reason why these could not be reinstated, as the applicant remains a citizen of China. The applicant states that if he cannot get a job, he could not get these services which are normally provided by employers but as noted elsewhere, the Tribunal is not satisfied the applicant would be unable to get a job in China.

29. The applicant states that he cannot find a job in his own profession due to his health condition and any other job he is likely to find would be of low salary and he could not support his family. The applicant states that he has no experience in any other field and would have to start at a low level. Again, the applicant presented no evidence to support these assertions which appear to be purely speculative. The presented evidence does not satisfy the Tribunal that the applicant cannot work in his own field or a related occupation, whether due to his medical condition or his age or his absence from the country, or the break in his professional work experience or for any other reason. The applicant has not satisfied the Tribunal that he could not get any other job that would provide him with access to Medicare and other benefits and provide some income to his family. The applicant also told the Tribunal that his wife has been professionally employed both in Australia and in China and she may be also able to contribute to the family’s budget. The Tribunal does not accept the applicant’s evidence that the family would not have sufficient funds because of the applicant’s employment situation or because of any other reason.

30. The applicant states that due to his age and health conditions, it would be hard for him to return to the Chinese society. He claims he may be unable to find a proper job and would be a financial burden on the family. The applicant told the Tribunal that he is 40 years of age and most corporations do not hire people over 35. The Tribunal does not accept that  evidence. The applicant presented no probative evidence in support of his assertions as to why he would be unable to get a job, particularly as he had spent a relatively short period of time in Australia of about 4-5 years. The applicant presented no evidence of having sought any jobs in China and of having been denied employment in China. The applicant presented no evidence that at the age of 40 he would find it difficult to get a job and he presented no evidence that he would find it difficult to get a job due to his absence from the country. As for the applicant’s medical condition, the Tribunal is of the view that if it limits the applicant’s employment, that would be the case irrespective of the applicant’s country of residence.

31. The Tribunal accepts that due to not working in the field in the past four years the applicant’s professional proficiency may have diminished and the Tribunal is prepared to accept that this may affect the applicant’s chances of obtaining employment in China in the short term, but the Tribunal does not accept that the applicant would be unable to obtain gainful employment if he was to return to China.

32. The applicant told the Tribunal that due to the pandemic, the Chinese government has stopped granting visas to overseas citizens and he is not certain that his daughter would be able to get the Chinese visa to travel to China. When asked if a minor child could get the visa in circumstances where both of her parents may have to return to China, the applicant stated that he did not know whether his daughter would be able to get the visa. Even if the Tribunal were to accept that the child cannot get a visa to travel to China at present, the Tribunal is mindful that if the visa is cancelled and if the applicant is required to leave Australia as a result, the applicant will be able to seek a Bridging visa on departure grounds to arrange his affairs before the family’s departure from Australia and the duration of that vias may require consideration of any Covid restrictions on travel.

33. The applicant states that if his visa is cancelled, his wife’s visa may not be approved and she would lose her job, which would affect the family financially and make it difficult for them to raise their daughter. The applicant states that he made a mistake but does not have any other bad record. The Tribunal accepts that if the applicant’s visa is cancelled, his wife is unlikely to be able to get the Partner visa. For the reasons stated above, however, the Tribunal does not accept the applicant’s claim that he and his wife would be unable to find employment in China and support the family financially.

34. The Tribunal does not accept much of the applicant’s evidence and has formed the view that much of it has been exaggerated. In particular, the Tribunal does not accept that since migrating to Australia, the applicant has lost his connections in China and (to the extent that is his claim) that he would be unable to re-establish such connections. The Tribunal is mindful that the applicant has been living in Australia for a relatively short period of time. There is no obvious reason why the applicant would have lost is connections with friends and family since his migration to Australia and even if this was so, why such connections cannot be re-established. Neither does the Tribunal accept the applicant’s evidence that he would be unable to find employment in China, even having regard to his health condition and age and absence from the country. The applicant had been employed prior to his arrival in Australia and he claims he also did work in Australia upon his arrival. The applicant presented no evidence of having sought employment in China and of having been denied such employment. The applicant’s claim of being unable to find a job in China appears to be pure conjecture which is not based on any probative evidence and the Tribunal does not accept that claim. The Tribunal acknowledges that the applicant may not be able to work in his own field (and has not done so in Australia) or the number of hours he prefers but the Tribunal does not accept that the applicant will be unable to find gainful employment (with the resultant health care and other benefits) in China.

35. Neither is there any obvious reason why the applicant would be unable to re-establish himself in the Chinese society, as he claims. He has lived in China the majority of his life, he had completed his education in China and was employed there. He would reside in China with his partner and child and he told the Tribunal that his parents and parents in law are in China. The applicant has lived in Australia for a relatively short period and claims to have been able to establish himself in this country (despite limited language skills and different culture). The applicant has not satisfied the Tribunal that he would have any difficulty re-establishing himself in the Chinese society.

1. The Tribunal accepts that hardship would be caused to the applicant and his family if the visa is cancelled, partly because the applicant’s partner may not be granted her own visa and that may mean that the family may have to return to China. That would involve the family giving up whatever they have built up and acquired during their residence in Australia and foregoing the opportunities and hopes they had for their future lives here. Both the applicant and his partner may not be able to pursue employment in Australia and their social interactions and relationships in Australia may also be affected. However, the Tribunal does not consider this would cause significant hardship for the family, given the applicant’s (and his partner’s) relatively short stay in Australia. The Tribunal is also mindful of the fact that on the applicant’s own evidence, his partner has not been granted an Australian visa and until such visa is granted, she cannot assume that she would be permitted to remain in Australia permanently.

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

2. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

3. The applicant told the Tribunal that he married his wife in 2017, after being granted the visa but before his entry to Australia. The applicant stated that he did not inform the Department of this change in his circumstances prior to his entry to Australia because he was not aware of his obligation to do so. The Tribunal notes that the application form does require applicants to inform of any changes in circumstances and in any case, the Tribunal does not consider that  a claimed lack of knowledge of the law justifies its breach. This may indicate non-compliance with s. 104 of the Act. The Tribunal places no adverse weight on this factor.

   The time that has elapsed since the non-compliance

4. The NOICC indicates that the application for the Skilled visa was made in January 2017 and approximately four and a half years passed since the non-compliance. In the Tribunal’s view, that is not a significant period of time but the Tribunal accepts that the family has settled in Australia in that period.

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

5. There are no known breaches of the law.

   Any contribution made by the holder to the community

6. The applicant refers to his past employment and payment of taxes. The applicant refers in his response to the NOICC to voluntary work. The Tribunal accepts the applicant has made a contribution to the community and this factor weighs against the cancellation.

7. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140

8. There are no persons subject to the consequential cancellation. The applicant’s Partner visa may be refused if she is no longer sponsored by an Australian permanent resident but her visa would not be cancelled as a result of the cancellation of the applicant’s visa. This consideration is neutral.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

9. The applicant’s daughter was born in 2018 and is an Australian citizen. The applicant presented to the Tribunal his child’s birth certificate and the Australian citizenship certificate, as well as evidence of childcare payments. The applicant states in his response to the NOICC that his daughter needs both parents. If his visa is cancelled, his daughter would have to move to China with her parents and would not have the same rights as Chinese citizens. She would not have a national ID, access to social benefits and healthcare and would require a visa to stay in China and it would be difficult for her to acquire a long term visa. The applicant states that the child’s identity would make it difficult for her to attend kindergarten and primary school. The applicant submits that it is in the best interests of his child to remain in Australia.

10. The applicant told the Tribunal that  his daughter was born in Australia and is used to life in Australia and food in Australia. The applicant states that his daughter is an introvert and found it difficult to adapt to childcare initially but has improved now and her English is improved. She has formed friendships and likes her teachers. The applicant claims that if his daughter would have to go to china, she would have to be used to the new environment and improve her Chinese. The Tribunal is prepared to accept that evidence, however, the Tribunal is of the view that  given the child’s young age, she would be easily able to adapt to life in any other country, including China. There is nothing in the applicant’s evidence that  would indicate that the child’s particular circumstances  would render her unable to adapt to the new environment or make it difficult for her to do so.

11. The Tribunal is of the view that given the child’s young age, it is in her best interests to be cared for by both parents, however, this need not necessarily occur in Australia, irrespective of the child’s citizenship. This would normally mean that the best interests of a child would not be adversely affected if the applicant was required to depart Australia as a result of a parent’s visa being cancelled. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the younger child retains her Australian citizenship (and the applicant’s submission suggests that it cannot be renounced), the child will not acquire Chinese citizenship and that may mean that she may not have access to public systems including healthcare and education. It may be necessary for the child to rely on private education and private healthcare and other systems that are not subsidised by the government.

12. The applicant claims that his daughter is an Australian citizen and has a right to live in Australia. The Tribunal accepts that is the case and the Tribunal also accepts that if the applicant is required to leave Australia as a result of his visa being cancelled, it is most likely the child would travel to China with her parents. However, contrary to the applicant’s suggestion, the Tribunal does not accept that the child’s Australian citizenship means she must only live in Australia and cannot (or cannot be expected) to live in any other country. The Tribunal is of the view that it is not uncommon for citizens of one country to live in another country (as the applicant and his wife have decided to do) so the Tribunal does not consider that the mere fact that an Australian citizen child may not live in Australia would be contrary to the child’s best interests or cause adverse consequences to the child.

13. The applicant told the Tribunal that even if he were to application for his daughter to apply for the Chinese citizenship but the process may take over two years and in the meantime his daughter would not be entitled to any benefits and he would have to pay out of pockets. The applicant’s evidence is that if his daughter was to return to China, he would apply for the Chinese citizenship for his daughter but he may not be able to do that while the child is too young so he may need to wait until she grows up.

14. Although the Tribunal does not accept much of the applicant’s evidence in relation to his daughter’s interests, the Tribunal accepts that the residence of the Australian citizen child in China, where she cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where she may be required to reapply for visas and routinely register with the local authorities, may cause hardship to the family and the child. The Tribunal accepts that given her Australian citizenship, the child would experience significant limitations in various aspects of her life in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and the Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’s daughter require her to remain in Australia and that her best interests would be adversely affected by the cancellation of the visa. The Tribunal acknowledges it is a primary consideration but it is not a determinative one. This factor weighs very heavily against the cancellation.

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

15. The applicant does not claim, and the Tribunal does not accept on the evidence before it that he would be subjected to any harm or persecution giving rise to Australia’s protection obligations upon return to China. The Tribunal finds that the cancellation of the visa would not lead to the person’s removal in breach of non-refoulement obligations.

16. The applicant’s partner is in Australia but not a holder of a permanent visa. His daughter is an Australian citizen. The applicant’s parents and parents in law are in China. The applicant told the Tribunal that he intends to sponsor his parents for the Australian visas and his wife wants to bring her father to Australia but that has not yet been done, nor have the visas been granted. The Tribunal is mindful that if the family were to return to China, the applicant’s minor child will travel with them. The Tribunal finds that the principles of family unity would not be breached by the cancellation of the visa.

17. The Tribunal finds that these considerations are neutral.

    Whether there are mandatory legal consequences

18. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to detention and possible removal from Australia. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellations and the applicant and family members may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore. If the applicant is no longer a permanent resident of Australia, he may be unable to sponsor his partner for the Partner visa, which may lead to her visa application being refused, and the applicant and his partner would be unable to sponsor other family members if they do not hold permanent visas. These factors weigh against the cancellation.

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

19. The applicant outlined several matters which he claims would result in hardship if his visa is cancelled. These matters have been addressed above. While the Tribunal has formed the view that some of the applicant’s evidence has been significantly exaggerated, the Tribunal accepts that considerable hardship would be caused to the family by the cancellation as it is likely to result in the family having to depart Australia.

20. The applicant told the Tribunal that if he needs to return to China, he needs more time because he does not want to break his lease, his daughter needs to apply for the visa, they need to dispose of their property and the flight tickers are expensive at present. The Tribunal acknowledges that evidence but is mindful that if the applicant’s visa is cancelled, the applicant is eligible to seek a Bridging visa on departure grounds and it is for the decision-maker in that application to determine when the applicant and his family would be required to leave Australia and whether the applicant could have the right to work before his departure.

21. The applicant states that there is a higher risk of his daughter being infected by Covid at the airport or during the flight. Even if that is the case, again, the Tribunal is of the view that the applicant can seek an extended bridging visa until he is able to fly in a safer environment. As noted above, the Tribunal accepts that if the cancellation of the visa will result in the family leaving Australia, it will cause hardship to the family.

22. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with s. 101 and s. 103 of the Act and that there are grounds for cancelling the visa.

23. The Tribunal accepts that about five years had passed since the non-compliance, which is not a significant period in the Tribunal’s view, but the Tribunal acknowledges that the family had been living in Australia and have settled in this country and formed social and employment connections. The Tribunal also accepts that the applicant and his partner have an Australian citizen child who was born in Australia, attends childcare and may be used to the Australian way of life.

24. Importantly, the Tribunal accepts that hardship would be caused to the family if the applicant’s visa is cancelled. This is because the cancellation of the visa is likely to result in the family being required to return to China, sever their employment and social ties in Australia and the need re-establish those ties (and other arrangements) in China. While the Tribunal has formed the view that much of the applicant’s evidence about the hardship the family would experience has been exaggerated and has no basis, the Tribunal accepts that due the family’s settlement in Australia and their absence from China for nearly five years, it would require time and effort for them to be resettle in China and obtain employment and re-re-establish various ties and administrative entitlements (such as health care, superannuation, etc). The Tribunal also accepts the applicant’s evidence that the travel itself may cause hardship to the family due to the cost of travel and risks associated with Covid. In general the Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled and if the cancellation will result in the family having to leave Australia. The Tribunal also accepts that the cancellation of the applicant’s visa is likely to lead to the refusal of the visa application made by the applicant’s partner. These factors weigh against the cancellation.

25. The Tribunal has determined that the cancellation of the visa would not be in breach of Australia’s non-refoulement obligations and the principles of family unity.

26. The Tribunal has formed the view that the best interests of the child would be to remain in Australia and that means that the applicant should retain his visa to live with the child, as given the child’s age, she would live with her parents. The Tribunal gives this very significant weight against the cancellation and acknowledges that the best interests of the child is a primary consideration. It is not a determinative consideration.

27. The Tribunal accepts that the applicant has made some contribution to the community and acknowledges the applicant’s evidence that he intends to work and continue to make contribution through employment, voluntary work and other activities. The Tribunal considers that these are all factors that weigh against the cancellation.

28. However, in the circumstances of this case, the Tribunal has decided to place greater weight on the fact that the decision to grant the visa was based on incorrect information and bogus document and the circumstances in which the non-compliance occurred. The applicant’s evidence is that he had never done the relevant English test and did not know if he could pass the test. The applicant’s evidence is that he had no confidence in being able to meet one of the key requirements for the grant of the visa, and was too busy undertaking the test which he knew was one of the requirements for the visa grant, and so he decided to arrange for another person to sit the test.

29. In arranging for another person to sit the English test, the applicant had deliberately engaged in fraudulent conduct for the purpose of obtaining the visa. The applicant was aware that evidence of English proficiency was a requirement for visa grant but decided it was better to arrange for a friend to do the test than to sit the test himself. It is highly significant, in the Tribunal’s view, that the applicant would not have been granted the visa, if the correct information was known. That is, the family’s settlement in Australia and the child’s Australian citizenship are all consequences of the applicant’s misconduct. These factors weigh very heavily in favour of the cancellation.

30. While acknowledging that the best interests of the applicant’s daughter would be adversely affected by the cancellation and that it is in her best interests to remain in Australia, and acknowledging that it is a primary consideration, in the circumstances of this case, the Tribunal places greater weight on the circumstances in which the non-compliance occurred and their significance to the visa grant.

31. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    Conclusion

32. 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

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

    Kira Raif
    Senior Member