Guo (Migration)

[2019] AATA 4137

Guo (Migration) [2019] AATA 4137 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Feng Guo
Mr Yuchen Guo

CASE NUMBER:  1819406

DIBP REFERENCE(S):  BCC2016/815838

MEMBER:Kira Raif

DATE:9 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 100 (Spouse) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 09 September 2019 at 7:43am

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – incorrect information – facial image comparison – admitted lie – wife is sick – deliberately withheld information – unlawful citizen – bogus passport – false identity – claimed genuine relationship – extensive breaches – no jurisdiction in relation to other applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

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 Immigration to cancel the first named applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of China born in March 1965. He was granted the Class BC Partner visa in September 2013. On 13 October 2016 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 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 17 November 2016. The applicant sought review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. On 29 March 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and in May 2018 the Court remitted the matter to the Tribunal for reconsideration.

5. The applicants appeared before the Tribunal on 2 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ partners. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

6. 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.

7. 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?

8. 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.

9. 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 and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

10. 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 of the Act.

11. The applicant provided to the Tribunal a copy of the primary decision which contains the following information.

    a.The applicant completed an application form in relation to his Partner visa application made in May 2011 in the name of Feng Guo. On the application form:

    i.In response to a question ‘have you or any other person included in this application ever been refused an entry permit or visa to Australia?’ the applicant stated ‘no’.

    ii.In response to a question ‘have you held or do you currently hold a Bridging visa E (BVE)?’ the applicant stated ‘no’.

    iii.In response to a question ‘have you or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?’, the applicant stated ‘no’.

    iv.The applicant signed a declaration on the application form in which he declared that the information he supplied in the application was complete, correct and up to date in every detail.

    v.Mr Feng Guo was granted a Class UF Partner visa on 10 October 2011.

    b.Facial photographs of Feng Guo were provided to the Department in association with the applications made by Feng Guo and Sen Lin Guo.

    c.On 12 October 2016 a facial image comparison was conducted on photographs submitted to the Department in relation to the applications made by Feng Guo in April 2011 and Sen Lin Guo in August 2000 and September 2000 respectively. The facial examination concluded that Feng Guo and Sen Lin Guo represent the same person.

    d.Information on the Department’s file indicates that Feng Guo made several applications, and was granted several visas previously, as follows:

    i.Sen Lin Guo was granted a Class UC Subclass 456 visa on 11 August 2000.

    ii.Sen Lin Guo applied for a Class UC Subclass 457 visa on 7 September 2000. The application was refused on 8 September 2000.

    iii.Sen Lin Guo was granted a Bridging A visa on 7 September 2000.

    iv.Sen Lin Guo applied for a substantive visa on 27 September 2000. The application was refused on 8 November 2000.

    v.Sen Lin Guo was granted a Bridging A visa on 27 September 2000.

    vi.Sen Lin Guo was granted a Bridging E visa on 1 August 2001.

    vii.Sen Lin Guo as granted a Bridging E visa on 7 April 2010.

12. In his written response to the NOICC the applicant admitted that he changed his name and date of birth in 2011 from Sen Lin Guo. The applicant stated that the previous date of birth used for the name Sen Lin Guo was based on the solar calendar while the current date of birth is based on the lunar calendar and both refer to the same date of birth.

13. The applicant confirmed that he came to Australia around August – September 2000 and had no knowledge of the Australian immigration laws. He used the help of an agent to apply for other visas. He was unaware that a Subclass 457 application was lodged on his behalf until he received the NOICC. He admitted to lodging another visa application in late 2000 and he also admits that he held Bridging E visas before departing Australia around April 2009. The applicant admitted to providing incorrect answers on the Partner visa application form and states that the answers to the question specified in the NOICC should have been ‘yes’.

14. In his written and oral evidence to the Tribunal the applicant also confirmed that he had previously travelled to Australia in 2000 under the name of Sen Lin Guo on a Business visa and lodged another application in Australia. The applicant also confirmed that he held a Bridging visa. The applicant told the first Tribunal in oral evidence that he knew the answers to the questions he supplied on the application form were incorrect and he said that he gave incorrect information because he was concerned about his wife’s poor health and he thought that by providing the correct information, his visa application would be delayed.

15. The Tribunal finds, having regard to the above information and the applicant’s own evidence, that the applicant previously travelled to, and lived in, Australia using a different identity. He used the name of Sen Lin Guo and a different date of birth. The Tribunal finds that the applicant had previously been refused a Business visa and another visa and also that he has held a Bridging visa E during his first stay in Australia.

16. The Tribunal finds that the information the applicant gave in his Partner visa application form in relation to the questions whether he had previously been refused a visa, whether he held a Bridging E visa and whether he had previously been to Australia was incorrect. The Tribunal finds that the applicant filled in or completed his application form in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s.101(b) of the Act. For these reasons, the Tribunal finds that there was non-compliance with s.101 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 Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

19. The correct information is that the applicant had previously travelled to Australia using a different identity. He made applications for visas in Australia and was refused some visas. He also held a Bridging E visa. The applicant admits that he had ‘lied’ and apologised for that.

    The content of the genuine document (if any)

20. This is not relevant in the present case.

    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. When making the application, the delegate would have considered whether the applicant had an outstanding debt to the Commonwealth (public interest criterion (PIC) 4004) associated with his previous applications in Australia and the Special Return Criteria in Items 5001 and 5002. Further, an applicant’s identity is highly significant to an assessment of any visa application. The applicant’s lengthy period of unlawful stay may have been relevant to the assessment of his character, for the purpose of s.501 and Item 4001. The applicant’s willingness to provide incorrect information in his application made in September 2000 – and the applicant now admits that information was incorrect – would have been also relevant to the assessment of his credibility and that is relevant to the assessment of the applicant’s relationship with the sponsor.

22. In his submission to the Tribunal of 22 May 2019 the applicant claims that the incorrect answers would not have been a basis for the refusal of the visa and would have been irrelevant to the assessment of his relationship with the sponsor. The applicant submits that it cannot be said that the decision to approve the visa was driven by the failure to consider any relevant consideration underpinning the statutory criterion for the approval of the subclass 309 visa. In the Tribunal’s view, that submission is based on the erroneous premise that the assessment of the subclass 309 visa was limited to the assessment of the applicant’s relationship with the sponsor. That is not the case. As noted above, there are other criteria that form part of any visa application assessment.

23. It is not necessary to determine whether the applicant would have met these criteria if the correct information was known. The Tribunal is satisfied that there are several criteria to which the applicant’s previous visit to Australia and stay in Australia would have been relevant. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

24. In his written response to the NOICC the applicant refers to his relationship with his partner Ms Thu and stated that he wanted to return to Australia as soon as possible to look after her as she was diagnosed with cancer in 2011 and was also suffering from diabetes, major depression, fibroids, hypertension and ventricular hypertrophy and out of concern for her serious medical condition, the applicant was anxious to return to Australia to be able to look after her as their relationship was genuine. The applicant states that he believed the processing of his Partner application would be faster if there were no visa refusals and BVEs on his record and he thought he would be barred from re-entering Australia for three years due to him holding a bridging visa before, which was not the case.

25. The applicant states that he used a different name and changed his date of birth from the lunar date to the solar date. The Tribunal acknowledges that the two stated dates of births may have been derived from the different calculation of the applicant’s date of birth. However, it is not in dispute that the applicant used a different name and a different date of birth in his application and that he deliberately withheld information about these changes when making the application because he believed it would be to his advantage.

26. The Tribunal acknowledges that the exclusion period would not have applied in relation to the Partner visa application and it is difficult to predict whether the full disclosure of his immigration history would have affected the processing time of his application. It is entirely possible, if not likely, that the provision of the correct information would not have delayed the processing of the Partner visa application. However, the Tribunal finds the circumstances in which the non-compliance occurred problematic. The applicant’s evidence in response to the NOICC and to the Tribunal is that he believed his application would be adversely affected if the correct information was disclosed, so he made the decision not to disclose that information. That is, the provision of incorrect information was intentional and done deliberately because the applicant believed the incorrect answers would assist him in the visa process.

27. The applicant states that he did not know the immigration laws when he first came to Australia and did not know that an application for a Business visa was made on his behalf and he also claims that the agent made up the claims in his subsequent application. The Tribunal finds that claim unconvincing, given that the applicant would have been required to sign application forms and also provide at least some personal documents in support of the applications. In oral evidence to the present Tribunal the applicant also said that he had opened a restaurant with his wife and wanted to come back to Australia as soon as possible and he did not want to delay the grant of the visa. The applicant said that others told him that if he disclosed his previous unlawful status, it would delay the visa grant.

28. The Tribunal notes that the issue here is not the applications the applicant made during his first visit to Australia but the incorrect answers he gave in his Partner visa application made in 2011. In the Tribunal’s view, by that time the applicant would have sufficient familiarity with the immigration laws to appreciate that he should provide truthful answers. The applicant claims he believed that he would be subject to an exclusion period or delayed processing if his immigration history was known and the applicant chose to falsify the information he supplied in the application form in order to avoid such delays. That is, the provision of incorrect answers was not due to any lack of familiarity but was done deliberately to expedite the processing of the application.

    The present circumstances of the visa holder

29. In his written response to the NOICC the applicant states that he met his partner Ms Thu in 2005 and they had been in a de facto relationship until their marriage in April 2011. The applicant provided evidence of the relationship to the two Tribunals and for the purpose of this review, the Tribunal accepts that the applicant is in a genuine and long-term relationship with an Australian citizen.

30. The applicant states that his partner, Ms Thu was suffering from several serious medical conditions prior to his departure from Australia and he wanted to return to Australia to look after her. There is medical evidence before the Tribunal concerning the sponsor’s health and the Tribunal has had regard to the psychological report of Ms Zhang which indicates that the sponsor suffers from severe depression, stress and anxiety, as well as other evidence which refers to her suffering from diabetes.  The Tribunal considers that report problematic. There is no evidence of Ms Thu undergoing treatment. Rather, the report indicates that she attended an appointment on 10 March 2017, which is also the date of the report. There is no evidence of any treatment with Ms Zhang prior to that appointment or subsequent to it. The report indicates that the sponsor was diagnosed with depression in 2011 and there was improvement in her mental health in 2012 and there is no reference to ongoing treatment or support after that date. In his oral evidence to the present Tribunal the applicant was unaware of his wife seeing a psychologist and said that she may have seen a psychologist when he left Australia, which is not consistent with the date of Ms Zhang’s report. The fact that Ms Thu saw Ms Zhang in March 2017 shortly before the Tribunal hearing might suggest that Ms Thu saw the psychologist solely for the purpose of obtaining the report in support of her husband’s visa matters. The report indicates that Ms Thu was assessed using a self-reporting questionnaire and much of her history is recorded on the basis of Ms Thu’s self-assessment. Given the Tribunal’s concerns about Ms Thu’s motivations in obtaining that report, as well as the timing of the report, the Tribunal considers the self-reporting to be self-serving and unreliable. Nevertheless, the Tribunal is prepared to accept the professional opinion set out in that report. The Tribunal accepts that at least in the past, Ms Thu has been diagnosed with depression. The applicant’s evidence to the Tribunal is that his wife’s condition has improved.

31. The applicant told the Tribunal that his wife is under huge psychological pressure and her diabetes has also deteriorated. She is taking injections daily. She also has hypertension, an eye problem and a problem with her arm, which was recently operated on. The applicant described his wife’s medical conditions and the Tribunal accepts that evidence, which is supported by several medical reports. The applicant states that he prepares special food for his wife and helps her walk. The applicant said that his wife suffers from hypertension and heart palpitations and he must accompany his wife because she may faint and suffer a stroke. The Tribunal accepts that the applicant provides significant help to his wife and that he is the primary caregiver for his wife, who is in poor health. The Tribunal accepts that the wife’s family are not able to provide the requisite care.

1. Ms Thu also gave oral evidence to the Tribunal about her relationship with the applicant and her poor health, which has deteriorated since the cancellation of the visa. Ms Thu said that her health concerns are caused by her worry about her husband and the possibility of their separation. Ms Thu states that her relationship with the applicant has been in existence for 17 years and states that in that period the applicant has been looking after her and she described the nature of that help. Ms Thu states that she has a close relationship with her step-son and daughter-in-law who treat her well and help with her care. The Tribunal accepts that evidence. The Tribunal also accepts that due to the delays in the Partner visa processing, the separation may be a lengthy one.

2. The applicant states that he has been living in Australia since 2011 when he was granted the Partner visa and he refers to his restaurant business which he has been operating from July 2015. The applicant provided to the Tribunal evidence in relation to the restaurant ownership and its operations, as well as his taxation records. The Tribunal accepts that the applicant operated a business in Australia and also that such business provides employment opportunities to Australian staff. The applicant told the Tribunal that since his visa was cancelled, he has not been actively involved in the operation of the business and they had asked a friend to take care of the business due to his wife’s poor health. The Tribunal accepts that the applicant’s wife may be unable to operate the business without help from the applicant due to her poor health.

3. The applicant told the Tribunal that his wife is an Australian citizen and has been living in Australia for over 20 years. The applicant states that if his wife stays in Australia, she would be able to get good treatment from doctors which she cannot get overseas. She could not get used to the food in China. The applicant states that if his wife was to travel with him to China, her medical condition would deteriorate. The Tribunal accepts that significant hardship would be caused to the applicant’s partner if she was to accompany the applicant overseas but there is no suggestion that she intends to travel overseas. The Tribunal acknowledges that if the visa is cancelled and if the applicant is to leave Australia but his wife remains in Australia, that would cause the family to be separated unless and until the applicant is granted another visa.

4. The applicant told the Tribunal that he has a mortgage of between $1 million and $2 million (he could not recall the size of the mortgage). The applicant said that he cannot work because of his visa and they are repaying it through business earnings and past savings. The Tribunal is prepared to accept that some financial hardship would be caused by the cancellation.

5. There is evidence before the Tribunal that the applicant’s son (the second named applicant) was also operating a restaurant in Australia. The applicant told the Tribunal that his son cannot work because of his visa so the business is run by others. The Tribunal accepts that if his visa is cancelled and if the applicants are required to leave Australia, this is likely to affect the operation of the businesses and employment opportunities for the staff. 

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

6. Nothing adverse is known about the applicant’s subsequent behaviour in relation to his obligations under the Act.

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

7. The applicant concedes that he remained in Australia unlawfully between 2001 and 2009. The Tribunal finds that residence in Australia as an unlawful non-citizen constitutes non-compliance with the Act.

8. The applicant also told the Tribunal that before his departure in Australia he used to do odd jobs. He worked in a Malaysian restaurant from about 2008 and he also worked on construction sites from 2000 for many years in order to support himself. The Tribunal finds that the applicant did not comply with s.235 of the Act by engaging in work as an unlawful non-citizen and that is another instance of non-compliance.

   The time that has elapsed since the non-compliance

9. The application for the Partner visa was made in October 2011. Approximately eight years has passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.

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

10. There are no known breaches of the law since the non-compliance.

    Any contribution made by the holder to the community

11. The applicant claims that he makes a contribution to Australia by paying personal tax and also by providing employment to Australian workers in his restaurant. The applicant presented to the Tribunal evidence in relation to the restaurant employees, taxation records and other business records. He told the Tribunal that since his return to Australia, the business has developed into a big shop and they provide employment opportunities to others. The applicant told the Tribunal that he attends church and provides food to the church at cost value and they have been doing that for a number of years. The applicant also referred to making donations. The Tribunal accepts that the applicant contributes to the community through the payment of taxes and providing employment opportunities in Australia and also his contribution to the church. 

12. 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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

13. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future applications made offshore. The applicant may also lose some of the entitlements he may have acquired as a permanent resident if he is no longer a holder of a permanent visa.  The Tribunal accepts that PIC 4020 considerations may arise in relation to future visa applications. The Tribunal acknowledges that the mandatory legal consequences may result in hardship to the applicant. 

    Whether there would be consequential cancellations under s.140

14. The applicant confirmed to the Tribunal that his son was included in his Partner visa application. The applicant’s son holds a visa because the applicant holds a visa and the son’s visa is subject to the consequential cancellation. The evidence before the Tribunal is that the son’s visa has been cancelled under s.140(1) of the Act.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

15. The applicant does not claim that there are any children who are affected by the cancellation of the visa.

16. The applicant claims that the principles of family unity require his presence in Australia. The applicant states that he is in a genuine relationship with his spouse. The second named applicant also refers to having a genuine relationship with his partner. For the purpose of this review, the Tribunal accepts that the both applicants are in genuine relationships with their partners. Although the Tribunal is also mindful of the applicant’s evidence that his mother and brother live in China and he also has a brother in Australia who is a permanent resident. His mother is presently visiting Australia on a visitor visa. The applicant argues that the cancellation of his visa would traverse the principle of the family unit and Australia’s Convention obligations. The applicant refers to the poor health of his partner and the care and support he provides to his partner. The Tribunal accepts that the principles of family unity favour their presence in Australia.

17. In his submission to the Tribunal of 1 September 2019 the applicant refers to the reasoning in Paul Family v Commonwealth of Australia [2013] AusHRC 63 and case law referring to the ‘arbitrary or unlawful interference with family’, in breach of the International Covenant on Civil and Political Rights (ICCPR). The applicant submits that if the decision to cancel his visa is affirmed, it would involve a traversal of the principle that the family is the fundamental unit of society and cause harm to the applicant who provides aide and support to his wife, and also the family. The applicant refers to the traversal of the Convention obligations. The Tribunal has formed the view, however, that there is nothing arbitrary or unlawful about the decision to cancel the applicant’s visa. That decision is made under s.109 of the Act and in compliance with the statutory provisions set out in the Act and the Regulations. It may be (but not should not be equated to) that the consequence of the cancellation is that the applicant may have to leave Australia and be separated from his wife but that does not amount, in the Tribunal’s view, to a breach of Australia’s obligations under any Convention including the ICCPR.

18. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution if returned to China. In particular, the applicant said that the claims he made in his previous application in 2000 were not true and were made up by the agent. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

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

19. The Tribunal has had regard to the medical evidence relating to the sponsor. The Tribunal accepts that the sponsor suffers from diabetes and had previously had treatment for a serious illness. She has recently had significant operations and has ongoing treatment as set out in the various medical reports. Despite its concerns about the psychological report, which are set out above, the Tribunal accepts that Ms Thu also suffers from severe depression, stress and anxiety. The Tribunal accepts the psychologist’s assessment that if the applicant was to leave Australia, this would add additional stress on the sponsor. The applicant and his partner also argue that Ms Thu would be unable to operate the business by herself if the applicant was required to leave Australia. The Tribunal is prepared to accept that the cancellation of the visa may adversely affect the sponsor’s health and the financial affairs of the family and may lead to the closure of the businesses, including the son’s business. The Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicants and their families and, in particular, the applicant’s wife.

20. The applicant told the Tribunal that his mother is nearly 80 years old. His brother in China has a small business to support himself. He and his son have been living in Australia for many years and if they were to return to China, they would have to start from nothing and would have to find work again. They have no property there. The Tribunal accepts that evidence and accepts that significant hardship would be caused to the applicants if they were to live in China. The Tribunal is mindful, however, that they may be eligible to seek another visa in the future.

21. The applicant told the Tribunal that he has been living in Australia for over 20 years and has nothing in China. The Tribunal acknowledges that the applicant has been living in Australia for a lengthy period of time, although the Tribunal also notes that for a substantial part of that period between 2001 and 2009 the applicant remained in Australia as an unlawful non-citizen.

22. The Tribunal has also had regard to the other instances of non-compliance or breaches of the law, including the applicant’s immigration history.

23. The applicant told the Tribunal that his identity documents are genuine. When asked how he obtained the passport in his present name, the applicant told the Tribunal that he had paid a friend in the PSB to issue him with the documents. He said he was born with the name of Sen Lin Guo and after he returned to China, that name was removed from his hukou and he was given another hukou with the name of Feng Guo. The applicant stated that it is not legal to change names in China. If that is the case, it is difficult to see how the authorities in China could have lawfully issued the applicant with the new identity and identity documents.

24. The applicant then told the Tribunal that it is “not a big thing” to change one’s identity, for example, if his name was unlucky, and he said that the PSB is allowed to change names. That contradicts the applicant’s earlier evidence that the change of name is not permitted under the Chinese laws. The applicant told the Tribunal that he had to find a friend in the PSB and pay money to get the new identity document. The applicant told the Tribunal earlier that his present identity of Feng Guo was not a genuine one, while he subsequently suggested that the change of name was legitimately done and he only paid the money to make the process quicker. While the applicant initially admitted that his present identity was not a legal one, he later claimed that he could have changed identity but admitted that his matter was ‘not quite correct’ because he paid money to the agent.

25. The applicant has not presented satisfactory evidence of a formal or authorised change of name. His evidence to the Tribunal is that he obtained the new identity documents by finding a friend in the PSB and by paying money. His evidence is that he was given a different name at birth and the Tribunal is not satisfied the applicant had lawfully changed his name and date of birth to what he uses presently. While the Tribunal accepts that the applicant’s passport may have been issued by the PSB and to that extent only, it is a genuine document as the applicant submits and the Tribunal finds that the document was obtained because of a false or misleading statement or purports to have been but was not issued in respect of the applicant. The applicant told the Tribunal that the issuance of the document was ‘a bit illegal’. The Tribunal has formed the view that the applicant’s new identity is not one that is legally recognised and his passport (which the Tribunal accepts may have been issued by the PSB) is a bogus document within the meaning of s.5(1)(a) or (c) of the Act.  The applicant concedes in his submission to the Tribunal of 4 September 2019 that the passport is a bogus document.

26. The Tribunal finds that in 2011 the applicant entered Australia using a false identity. The applicant told the Tribunal that he used his present identity to obtain his driver’s licence (which may have been in breach of s.49 of the Road Transport Act 2013). Provision of false or misleading information to the Commonwealth (such as to the Department when completing a visa application form) is an offence under s.137 of the Criminal Code Act 1995. By using a false identity and a false passport (albeit issued by the PSB), the applicant may have been in breach of s.234 or, s.236 of the Act. The Tribunal acknowledges that the applicant has not been charged, nor convicted of these offenses. The applicant concedes in his post-hearing submission to the Tribunal that these matters may be relevant to the exercise of discretion.

27. The applicant admits to living in Australia as an unlawful non-citizen between 2001 and 2009. He concedes that he carried out work in that period, in breach of the Act. Having regard to the applicant’s conduct, the Tribunal has formed the view that the applicant has flouted the Australian laws and has done whatever he believed would best suit his circumstances irrespective of his obligations under the Australian laws.

28. The applicant told the Tribunal that somebody else prepared his subclass 457 application and he did not know anything about the Australian laws. He said that a ‘group leader’ prepared the application on his behalf. The applicant told the Tribunal that he was not familiar with the content of his subclass 457 application because it was completed by a ‘group leader’. However, under s.98 the applicant is taken to have filled in the form even if somebody else did it on his behalf. The applicant also told the Tribunal that the agent made up the claims in the application made in September 2000. The Tribunal finds that the applicant had been untruthful in his past dealings with the Department and that he completed the forms in relation to these earlier applications in a way that incorrect answers were given.

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

30. The Tribunal has formed the view that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal accepts for the purpose of this review, that the applicant is in a genuine long-term relationship with his partner. The Tribunal accepts the medical evidence relating to Ms Thu and accepts that she suffers from a number of ailments and that the applicant is the primary caregiver to his wife. The Tribunal accepts that Ms Thu suffers from a number of conditions and receives ongoing treatment and is being cared for by the applicant and his son and that such support may not be available if the visas are cancelled and if the applicants are required to leave Australia. The Tribunal acknowledges the evidence that Ms Thu’s condition may be adversely affected by her separation from the applicant. The Tribunal also accepts the cancellation of the visa would affect the applicant’s business. The Tribunal accepts that significant hardship would be caused to the applicant and the applicant’s partner if the visas are cancelled.

31. Similar considerations arise in relation to the second named applicant. He is presently in a relationship and the Tribunal accepts for the purpose of this review it may be a genuine one. The Tribunal accepts that hardship would be caused to the applicant’s son and his partner if the applicants were to leave Australia. The Tribunal accepts that the principles of family unity favour the applicants’ presence in Australia.

32. The Tribunal also accepts that the applicants have been living in Australia for a lengthy period and are well settled in Australia. They operated a business and provided employment opportunities to others and made a contribution to the community through the payment of taxes and through the applicant’s church activities. The applicant expressed remorse for his conduct.

1. Against these considerations, the Tribunal has formed the view that the breach was significant. Although the applicant claims that his relationship with his spouse is genuine and that the breach was immaterial – and the Tribunal accepts that a genuine and long-term relationship exists – there are other considerations relevant to the grant of the visa. An applicant’s identity would have been highly significant to an assessment of any visa application and the significance of identity consideration is evident from the fact that PIC 4020(2A) provides for a 10 year exclusion period when one’s identity cannot be ascertained with certainty.

2. The Tribunal has formed the view that the applicant had persistently breached the Australian laws since his initial entry to Australia. The applicant’s breaches were extensive. He made applications for visas even though he claims he had no knowledge of their content and that the information in the September 2000 application was made up by the agent. He has been untruthful with the Department in the past. He remained in Australia as an unlawful non-citizen for a period exceeding seven years and worked as an unlawful non-citizen in breach of the Act. He deliberately decided to provide incorrect answers in his Partner application because he believed he would gain the benefit of faster visa processing. The Tribunal has formed the view that the applicant has little regard for the Australian immigration laws and is indifferent about his obligations in complying with such laws. The Tribunal finds that the applicant’s breaches of the law and other instances of non-compliance, the nature of the breach and the circumstances in which the breach has occurred outweigh other considerations.

3. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 100 (Spouse) visa.

5. The Tribunal has no jurisdiction with respect to the other applicant.

   Kira Raif
   Senior Member