Gao (Migration)

[2024] AATA 1615

Gao (Migration) [2024] AATA 1615 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lin Gao

REPRESENTATIVE:  Mr Yang Chen (MARN: 1280442)

CASE NUMBER:  2012430

HOME AFFAIRS REFERENCE(S):          BCC2020/1815567

MEMBER:Jason Pennell

DATE:5 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 5 June 2024 at 9.42am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers and a bogus document in a previous visa application – IELTS Test report for another person – establishment of multiple businesses providing employment – best interests of the child – financial hardship – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-111, 140, 189, 198
Migration Regulations 1994, Schedule 2, cl 189.223; rr 1.15, 2.41

CASES

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

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

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

4.    The applicant appeared before the Tribunal on 4 June 2024 to give evidence and make submission in support of her application for review. However, applicant’s husband, Mr Ying Chen (the applicant’s husband), also appeared before the Tribunal but was not called upon to give evidence. On 6 December 2023 the Tribunal received oral evidence from Mr Chen in relation to his own application for review as the secondary applicant to the visa.[1]  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

[1]    AAT File No 2012429

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

1. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8.    In this case, the delegate issued a Notice of Intention to Consider Cancellation under s 109 of the Act dated 30 June 2020 (‘NOICC’).[2] The NOICC contained particulars of non‑compliance with s 101(b) and s 103 of the Act based on inquiries made by the delegate about the information provided in relation to Ms Lin Gao’s application for a Skilled – Independent (Subclass 189) visa to which the applicant was included as a secondary applicant as her de facto partner (‘the visa’). Having regard to the material before the Tribunal, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 of the Act and that the NOICC issued under s 107 complied with the statutory requirements. These matters are not in dispute.

9.Accordingly, the questions for determination are:

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

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

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

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

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

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

2. Section 101 states that:

   Visa applications to be correct.

   A non-citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

3. Section 103 states that:

   Bogus documents not to be given etc.

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

4. Section 98 of the Act provides that a non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.[3]

   [3]    Section 98 of the Act

5. Section 99 of the Act provides any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of ss 100, 101(b), 102(b), 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.[4]

   [4]     Section 99 of the Act

6. Section 100 provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.[5]

Applicant’s migration history

[5]     Section100 of the Act

1. The applicant was born on 21 June 1987 in China and arrived in Australia on 31 May 2008 on a Higher Education Sector (TU-753) visa for the purposes of studying in Australia and was granted further student visas while at studying at university.  On 11 November 2010 the applicant completed a Bachelor of Commerce from Deakin University. On 3 December 2012 the applicant completed a Master of International Business at Monash University and finally on 6 November 2015 the applicant completed a Master of Business Administration (International Management) at Federation University.[6] On 3 October 2017 the applicant applied for the Skilled visa in the points stream with her husband, who at the time was her de facto, as a secondary applicant. On 14 November 2017 the applicant was granted a Skilled visa with her husband as the secondary applicant.[7]

   [6]     Applicant’s Skilled visa application Dept File No BCC20201815567 Doc ID 7606467

   [7]    Record of Decision dated 4 August 2020 Dept File No BCC20201815567 Doc ID 7606481

2. On 29 June 2020 the Department issued the applicant with an NOICC and on 4 August 2020 the applicant’s Skilled visa was cancelled.[8] As a result, the applicant’s application for a Resident Return (Subclass 155) visa was cancelled on 4 August 2020. The applicant was granted a Bridging visa (WE 050) and she applicant applied for review of the decision to cancel her visa on 4 August 2020.[9]

The NOICC

[8]     ibid

[9]     Acknowledgement of application letter dated 4 August 2020 AAT file No 2012430 Doc ID 7526708

1. The Department alleged that based on the information supplied to it that the applicant provided incorrect information and a bogus document in her Skilled visa application. That is, the IELTS test dated 11 February 2017 provided to the Department in support of the application for a Skilled visa contained a photograph of a person who was not the applicant, indicating that another person took the test on behalf of the applicant.

2. The NOICC refers[10] to the facial comparison checks made by Departmental Forensic Facial Image Examiner. The examiner undertook a facial comparison check between the image Ms Gao provided to the Department and the photograph in her Chinese passport provided with her visa application and noted that they appear to be the same person. The examiner then made a facial comparison with the photo attached to the IELTS test report provided with her visa application and concluded they were not the same person.[11]

   [10]  Notice of Intention to Cancel dated 29 June 2020 at p.4; Dept file BCC20201815567 Doc ID: 7606473

   [11]    ibid

3. In the NOICC the delegate stated[12] that he did not consider the applicant had not complied with s 103 of the Act because:

   The photograph appearing on Ms Gao’s IELTS test report, which was submitted in support of Ms Gao and the visa holder’s combined Skilled - Independent (subclass 189) visa application, is not an image of Ms Gao as claimed in the document, but of Ms Jiao SONG (born 5 February 1986).[13]

   [12]  ibid

   [13]  ibid

4. In addition, in the NOICC the delegate stated[14] that he considered the applicant had not complied with s 101(b) of the Act because:

   ·In your Skilled - Independent (subclass 189) visa application you claimed to have undertaken an English language test within the preceding three years, claiming this had been an IELTS test you sat on 11 February 2017, in which you achieved “proficient” English language level.

   ·However, the IELTS test report you provided, issued in your name for an IELTS test undertaken on 11 February 2017, contains the photograph of another person, indicating they undertook the test on your behalf.

   ·I consider if you had actually sat the IELTS examination as claimed, you would have been issued a genuine test report with your photograph on it and would not have a need to provide a bogus test report. I consider the fact you submitted a bogus test report, and had someone else sit the test for you, indicates the answers you provided in your visa application are incorrect, that you did not undertake that test as claimed nor achieve those results as claimed.

   [14]  ibid

5. The delegate noted that one of the eligibility requirements to be granted the Skilled visa includes reg 189.223 of the Migration Regulations 1994 (Cth) (the Regulations) that requires that at the time of the application the applicant had competent English as defined in reg 1.15C of the Regulations. The Minister’s written instrument for reg 1.15C specifies:

   ·The language test must have been conducted during the preceding 3 years.

   ·The permissible language tests include an IELTS test.

   ·The score required for ‘Competent English’ is an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing, and listening.

   ·The score required for ‘Proficient English’ is a score of at least 7 in each of the four test components of speaking, reading, writing, and listening.

6. The delegate found that based on the incorrect answers and supporting document, the applicant sat the IELTS test on 11 February 2017 and had been assessed as having competent English pursuant to reg 189.223. As a result, the applicant scored 10 points towards the applicant’s points test. The applicant scored a total of 75 points.

7. The NOICC noted[15] that on 25 June 2020 the applicant was granted a Resident Return (Subclass 155) visa, which had the effect of ceasing and replacing her secondary Skilled – Independent (Subclass 189) visa. However, pursuant to s 107A of the Act, non‑compliance in relation to the applicant’s Skilled visa can constitute grounds for cancellation of her resident return visa granted on 22 June 2020.

   [15]  ibid

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

9. On 22 July 2020 the applicant replied to the NOICC[16] requesting that she be provided copies of the documents referred to by the Department in the NOICC. On 23 July 2020 the Department advised the applicant that it considered that all the relevant information had been provided in the NOICC to enable her to respond and that no further documents would be provided.[17] It stated that it was open to the applicant to request the document referred to in the NOICC through Freedom of Information.[18] The applicant did not respond further to the Department and did not indicate to the Department if she agreed or disputed the breach of s 103 and s 101(b) of the Act as claimed.[19]

   [16]    Record of Decision dated 4 August 2020 Dept File No BCC20201815567 Doc ID 7606481

   [17]    ibid

   [18]  ibid

   [19]    ibid

10. Therefore, having considered the documentary evidence before the Tribunal, the Tribunal finds that the applicant did provide incorrect information to the Department in relation to her Skilled visa application. As such, the Tribunal finds that there was non-compliance with s 101(b) and s 103 of the Act by the applicant as described in the s 107 notice.

The applicant’s evidence.

1. For the purposes of this applicant the Tribunal has also considered the evidence provided by the applicant’s husband in his application for review[20] including his statutory declaration dated 1 December 2023[21] together with a Tribunal Book containing all relevant supporting documentation.[22]

   [20]  AAT File No 2012429

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

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

2. The applicant was born in China on 21 June 1987 in China and arrived in Australia on 31 May 2008 on a Higher Education Sector (TU-753) visa for the purposes of studying in Australia and was granted further student visas while studying at university.  Since arriving in Australia, the applicant has completed a Bachelor of Commerce from Deakin University, a Master of International Business from Monash University, and a Master of Business Administration (International Management) at Federation University.[23]

   [23]  Applicant’s Skilled visa application Dept File No BCC20201815567 Doc ID 7606467

3. While at university the applicant met her husband. They commenced living together in or about July 2009 and were married on 24 November 2017 in China.[24] The applicant and her husband now have a daughter who was born in Australia on 8 April 2021.[25] The applicant’s daughter not been to China.[26]

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

   [25]  Op Cit [13], [100]

   [26]  Op Cit at [100]

4. In or about November 2020 the applicant applied for citizenship.[27]

   [27]    Op Cit

5. The Tribunal was provided several IELTS tests taken by the applicant prior to February 2017. The applicant was recorded as having an overall band score of 7.5 in the IELTS test taken on 11 February 2017. Prior to that IELTS, the applicant had taken four IELTS tests dated 30 November 2013, 17 May 2014, 1 November 2014 and 22 November 2014. On three of tests, she scored an overall band score of 7 and on one she achieved an overall band score of 7.5. In addition, the Tribunal notes that the applicant has been able to undertake and complete several higher education courses in English, indicating that she has at least a component in English.

6. The applicant admitted to the Tribunal that the document provided to the department in relation to her IELTS test was a bogus document. Her evidence was that because it was important for the family to obtain the Skilled visa, she panicked and lost confidence in her ability to achieve the necessary score to pass the test for the purposes of obtaining the visa. This was despite previously having passed IELTS test and having obtained three University degrees in English. Her evidence was that because she had lost confidence the agent arranged for the document to be provided instead of her having to take the test.  As a result, the document was provided dishonestly by the agent with the applicant’s knowledge, in the interests of obtaining the visa in an expedient manner. Accordingly, the Tribunal has considerable concerns about the circumstances in which the document was provided to the department including the fact that the applicant’s agent was aware the document provided to the department was bogus.  

7. The Tribunal notes that the applicant’s employment history in her Skilled visa application lists her as having worked as an accountant with Interise Legal (the applicant’s representative) and Arrow Star Pty Ltd, a company owned and operated by Mr Chen. It was Mr Chen’s evidence that since having their daughter, the applicant no longer works in his business. Nevertheless, while Mr Chen is the owner and operator of several retail food outlets in Victoria, it is clear from the documentation that the applicant is also involved in the business. A failure to obtain the visa would undoubtedly have proved to be a major obstacle to the applicant and her husband business interest in Australia, adding to the pressure she claims to have been under at the time.

8. The first business was started in August 2015[28] being a retail food outlet in Fountain Gate Shopping Centre owned and operated through a company controlled by Mr Chen, Arrow Star Investment Pty Ltd. The financial accounts provided by Mr Chen show that it had a total income of approximately $480,000 for the financial year ended June 2022.[29] On 1 October 2022 50% of Arrow was sold to staff and other investors.[30]

   [28]  Op Cit at [27]

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

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

9. Since 2021 the applicant’s husband has started 6 other businesses and established a central kitchen and office/warehouse in Oakleigh, Victoria. Each of the businesses are operated through a company acting as the discretionary trustee. The ownership of each business is reflected by the shareholding of each company and trust.  The applicant’s husbands evidence, was that the applicant had contributed at least in part to the establishment of the business through the sale and refinancing of their family home in Bullen which was initially purchased because of a gift by the applicant’s parents of $400,000.00.[31]

   [31] Op Cit [40]

10. The applicant’s husband provided relevant financial statements in relation to the following businesses in which they have an interest:[32]

    (a)Dragon Hot Pot Burwood – He commenced the business in January 2022 with three other business partners. The applicant invested $189,000.00 into the business and owns 30% of the business.[33]  It had a total income of approximately $950,000.00 for the financial year ending June 2022 and employs around 20 people.

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

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

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

    (e)Phoenix Kitchen – The applicant opened the business in July 2023. He invested $180,000.00 and owns 20% of the business. No financial statements were available, but the business currently employs 23 people. The applicant’s evidence was that he and his business partner are currently searching for an appropriate location to commence another Phoenix Kitchen business.[34]

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

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

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

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

    [34]  Op Cit [88]

1. The applicant has been in Australia for approximately 15 years. During that time, she has obtained professional qualifications and has worked as an accountant assisting her husband to establish business interests as an owner and operator of several restaurants and food retail outlets. She has become an active member of the community through her daughter’s attendance and involvement with the daughters learning centre.

Conclusion on non-compliance

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

Should the visa be cancelled?

1. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

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

·        the correct information.

·        the content of the genuine document (if any).

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

·        the circumstances in which the non-compliance occurred.

·        the present circumstances of the visa holder.

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

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

·        the time that has elapsed since the non-compliance.

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

·        any contribution made by the visa holder to the community.

1. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[35] 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.

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

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

Correct information.

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

2. Section 110 of the Act provides that where incorrect information is provided as part of a visa application, the answers constitute incorrect information even though the person who gave or provided the answer, or caused the answer to be given, did not know it was incorrect.[36] In addition, s 111 provided that the cancellation provisions under s 109 of the Act apply whether the non-compliance was deliberate or inadvertent.[37] Therefore, even if the applicant had been unaware that the document was bogus, it would still constitute incorrect information under s 101(b) and s 103 of the Act by virtue of the operation of s 100 and s 111 of the Act.

   [36]  Section 100 of the Act

   [37]  Section 111 of the Act

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

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

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

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

The circumstances in which the non-compliance occurred.

1. The applicant provided a bogus IELTS test as part of her application for the Skilled visa. The false document was provided notwithstanding the fact that the applicant had obtained higher education qualifications in Australia and had achieved similar overall band scores on previous IELTS tests. The applicant conceded that the document was bogus but stated that she had lost confidence in providing a satisfactory score due to the pressure and importance of obtaining the visa to her and her family. The Tribunal notes that s 100 and s 111 of the Act provide that irrespective of whether the incorrect information is provided deliberately or inadvertently, it still represents a breach of s 101(b) and s 103 of the Act.

2. Based on the applicant’s evidence to the Tribunal and having considered the contents of the applicant’s visa application,[38] the Tribunal finds that the incorrect information significantly affected the assessment of the applicant’s refugee application.  The Tribunal gives this consideration significant weight in favour of cancelling the applicant’s visa.

The present circumstances of the visa holder

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

1. The applicant has been residing in Australia since May 2008. She was educated in Australia and holds higher education qualifications from Deakin University, Monash University and Flinders University. She is now married to Mr Chen who has established a business in the retail food industry. It appears at least initially the applicant was involved in the business and helped her husband establish the business. The applicant’s husband together with his business partners are responsible for the employment of a significant amount of people. The applicant and her husband have a daughter who currently attends early learning.

2. The Tribunal gives this consideration some weight against cancelling the applicant’s visa.

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

1. The applicant has engaged with the Department and the Tribunal in a respectful and timely manner and has acknowledged and accepted there has been non-compliance with ss 101(b) and 103 of the of the Act.

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

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

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

The time that has elapsed since the non-compliance.

1. The non-compliance occurred approximately 7 years ago. Given the passage of time, the Tribunal gives this consideration some weight against cancelling the applicant’s visa.

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

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

Any contribution made by the visa holder to the community.

1. There was no evidence of the applicant contributing to the community in a significant manner. Nevertheless, the Tribunal accepts that she is engaged in the community through her daughter attending a local learning centre.[39]  The Tribunal gives this consideration little weight in favour against cancelling the applicant’s visa.

Other considerations

[39]  ibid

1. While the factors specified in reg 2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be relevant in any given case.[40]  As a general principle, the Tribunal should apply lawful government policy, which includes Departmental guidance, unless there are cogent reasons for not doing so in the circumstances of a case.[41]  The government policy includes:

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

   There are no consequential cancellations in this case.

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

   It is government policy that consideration for cancellation of visas must consider any relevant obligations arising under international treaties. The obligations that the government deems most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement.[42]

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

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

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

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

1. As a signatory to the Convention on the Rights of the Child (CRC), Australia has certain obligations, including the best interests of the child being a primary consideration (Article 3.1) and family unity principles (Articles 9 and 16).  In this case, the applicant’s daughter was born in Australia in 2021. She has never lived in China and has not left Australia. The applicant’s daughter currently attends an early learning service and is confident and familiar with her surroundings. The Tribunal accepts and finds that if the applicant’s daughter is forced to return to China, she will find it difficult initially as she will be forced to speak Chinese and may suffer from some discrimination, having been born and raised in Australia.

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

Australia’s non-refoulement obligations

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

Mandatory legal consequences to a cancellation decision

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

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

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

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

1. The degree of hardship that would be caused to the applicant if her visa remains cancelled would be significant due to the loss of her husband’s business interests in Australia. The Tribunal acknowledges that the applicant has lived in Australia since her arrival in 2008, and as a result, it accepts that she will experience some difficulty in re‑establishing herself in China. In circumstances where the applicant’s husband as a business operator has ongoing obligations to both landlords and employees, if he is forced to return to China because of the cancellation of the visa it is likely that he and the applicant will personally suffer significant financial loss in addition to causing a significant financial loss or burden on third parties within the community, including landlords and employees.

2. Having had regard to the applicant’s circumstances, the Tribunal accepts that she will suffer a high degree of financial hardship if the visa is cancelled. The Tribunal acknowledges that the applicant has lived in Australia since 2008 and as result it will be difficult to adjust to living in China.

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

Exercise of discretion

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

2. Weighed against this (and other considerations) are the Tribunal’s findings that the applicant, given her educational standard, is likely to be competent in English, and that she will face significant difficulties and hardship if the visa is cancelled, including financial loss arising from the loss of her husband’s business and significant financial loss and hardship to third parties within the community. The applicant and her husband are responsible for the employment of staff through the operation of their restaurants and food outlets. In the event the applicant’s visa is cancelled its likely that the businesses will suffer resulting in the loss of staff. The applicant has been in Australia for a significant amount of time. She was educated in Australia and has helped her husband establish the businesses, with other partners and investors, in the retail food industry. The loss of that business would cause great hardship for the applicant and the staff of each business operated by the applicant and her husband. The Tribunal places great weight on the loss of employment by the staff of the business in favour of not cancelling the visa.

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

DECISION

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

Jason Pennell

Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

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

2. Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

3. Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

4. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

5. Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

6. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

8. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

1. Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

2. Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.