Han (Migration)

[2022] AATA 4253

Han (Migration) [2022] AATA 4253 (1 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiaren Han

CASE NUMBER:  2113628

HOME AFFAIRS REFERENCE(S):          BCC2021/1558586

MEMBER:R. Skaros

DATE:1 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 01 November 2022 at 1:18pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – bogus document – a member of the family unit – documents had been intentionally altered – provision of bogus documents as evidence of the applicant’s cohabitation with Ms Sun -– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 375, 376

Migration Regulations 1994, r 1.03, 1.12, Schedule 2, cls 190.311

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).

2. The delegate cancelled the visa on the basis that there was non-compliance with s.103 of the Act in relation to a previously held Skilled (Nominated) Subclass 190 visa. The applicant provided a copy of the delegate’s decision record to the Tribunal with the application for review. 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. On 11 October 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 October 2022. On 11 October 2022, the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

4. The Department’s file included a non-disclosure certificate issued under s 357A of the Act in respect of various documents, including a Document Examination Report, internal correspondence between the Department’s Cancellation unit and the Forensic Examination unit, and a copy of the applicant’s citizenship application form. The certificate provides that disclosure of the specified documents would reveal lawful methods for preventing, detecting and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods.

5. The file also included a certificate issued under s.376 of the Act in respect of internal departmental correspondence regarding commencement of the cancellation process. The certificate provides that disclosure of the specified documents would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

6. On 24 October 2022, the Tribunal wrote to the applicant to inform him that the Department’s file included non-disclosure certificates issued under s.375A and s.376 of the Act. Copies of the certificates were provided to the applicant. The applicant was also informed that the information covered by the certificate, to that extent it was relevant to the issues in the review, had been disclosed to him in the Notice of Intention to Consider Cancellation (the s.107 notice) and was set out in the delegate’s decision record. The applicant was invited to comment on the validity of the certificate and to provide any other information he wished the Tribunal to consider by 28 October 2022.

7. The Tribunal has not received any submissions regarding the validity of the certificates or any further information from the applicant, nor has the applicant contacted the Tribunal to indicate that any response is forthcoming. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

8. In considering the validity of the certificates, the Tribunal is satisfied that the certificates issued under s 375A and s.376 of the Act are valid as they provide valid public interest reasons for the non-disclosure of the specified documents. In any case, the Tribunal is satisfied that the relevant information contained in those documents has been disclosed to the applicant in the s 107 notice and the applicant had an opportunity to respond to the information. Furthermore, the information was set out in the delegate’s decision record which was provided to the Tribunal with the application review.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

12. 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.

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

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

14. 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.103 of the Act in the following respects.

15. On 31 May 2017 the applicant applied for the Skilled Nominated (Subclass 190) visa as a member of the family unit (de facto partner) of Ms Yitian Sun. The Subclass 190 visa application form indicated that the applicant and Ms Sun commenced a de facto relationship on 15 August 2015 and indicated a residential address at Marquet St Rhodes NSW 2138.

16. The applicants declared that they understood that the giving of false or misleading information is a serious offence, that they have read and understood the information provided to them in the application, that they have provided complete and correct information in every detail in the form and on any attachments and they understand that if, after the visa has been granted, any documents are found to be fraudulent or information found to be incorrect, that the visas may be subsequently cancelled.

17. The s 107 notice indicates that the following documents were provided with the Subclass 190 visa application as evidence of the applicant and Ms Sun’s cohabitation at Marquet St RHODES NSW 2138 between 2015 and 2016:

    ·Five Vodafone phone bills purportedly sent to the applicant at the address in Marquet Street, RHODES, NSW 2138, issued on 15 September 2015, 14 October 2015, 14 November 2015, 14 December 2015, and 14 January 2016.

    ·A Vodafone phone bill purportedly sent to Ms Sun at the address in Marquet Street, RHODES, NSW 2138, issued on 20 April 2016.

    ·A bank statement from the Commonwealth Bank for account number [ending in 065] purportedly issued to Ms Sun at Marquet Street, RHODES, NSW 2138 for the period from 1 July 2015 to 30 December 2015; and

    ·A bank statement from the Commonwealth Bank for account number [ending in 684] purportedly issued to the applicant at Marquet Street, RHODES, NSW 2138 for the period 1 July 2015 to 30 December 2015.

18. The delegate who issued the s 107 notice considered that the applicant had to satisfy the definition of ‘Member of the family unit’, as provided for in Regs 1.03 and 1.12 to meet the requirements in cl.190.311 for the grant of the visa.

19. Regulation 1.12 relevantly defines ‘Member of the family unit’ (in part) as a ‘spouse or de facto partner’ of the family head. Section 5CB of the Act defines de facto relationship for the purposes of ‘Member of the family unit’ as:

    Section 5CB De facto partner

    De facto partners

    (1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

    De facto relationship

    (2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

    (a)  they have a mutual commitment to a shared life to the exclusion of all others; and

    (b)  the relationship between them is genuine and continuing; and

    (c)   they:

    (i)live together; or

    (ii)   do not live separately and apart on a permanent basis; and

    (d)   they are not related by family (see subsection (4)).

20. The delegate considered that based on the material provided regarding the applicant and Ms Sun’s cohabitation, as well as meeting other relevant criteria, that the applicant was granted the Subclass 190 visa on 12 September 2017 on the basis of being the de facto partner of Ms Sun.

21. The s 107 notice indicates that, following the grant of the visa, a forensic examination was undertaken by the Department of the above listed documents which found that the residential addresses shown on the phone bills and bank statements did not match the residential addresses officially linked and registered to those documents.

22. The s 107 notice also indicates that on 28 February 2019 the applicant lodged an application for Australian citizenship by conferral. On 30 July 2019, the Department wrote to the applicant inviting him to comment on adverse information, being the information provided in his Subclass 190 visa application in relation to the Vodafone bills and Commonwealth bank statements in his name. The s. 107 notice indicates that the applicant was presented with the information (outcome of the forensic examination) that the addresses on the documents were intentionally altered and that the true addresses in respect of those documents were: Walker Street RHODES NSW 2138, Anzac Parade KINGSFORD NSW 2032, Tulip Street CHATSWOOD NSW 2067, and Kennedy Street KINGSFORD NSW 2032.

23. It was indicated in the s.107 notice that on 31 July 2019 the applicant wrote to the Department requesting withdrawal of his Australian citizenship application and on the same date, his application was withdrawn. On 8 July 2021 the applicant lodged an application for a Resident Return (Subclass 155) visa, which was granted on 6 August 2021.

24. In relying on the outcome of the forensic examination, the delegate considered the phone bills and bank statements provided in the visa application had been intentionally altered to demonstrate that the parties were in a de facto relationship with one another and were resident at the same address. The delegate found that the above listed documents provided with the Subclass 190 visa application were bogus documents as they had been altered by a person without authority to alter them.

25. On 9 September 2021, the applicant provided a written response to the s.107 notice. He stated that it was his former partner (Ms Sun) who had lodged the visa application and attached all the documents. As he was the secondary applicant his former partner asked him to provide his phone bills and bank statements to her, which he did. The bank statements and phone bills he gave Ms Sun were those he downloaded by his Netbank and mobile phone service provider. He was not aware which documents Ms Sun submitted and does not know why the addresses were altered.  

26. The applicant said he did reside at Walker St Rhodes in 2015. He provided a copy of a tenancy agreement which indicated that he and ‘Danmei Li’ entered into a six-month tenancy agreement to rent the unit at Walker St, Rhodes, NSW 2138, from 26 February 2015. The applicant claimed to have then resided at Marquet St Rhodes until mid-2017 and then at Half St Wentworth Point until 2018 after which he moved to Paddington. The applicant claimed that he never lived at the addresses in Kingsford or Chatswood and does not understand why those addresses were deemed to be the true address and he believes there must have been some mistake.

27. The applicant claimed to have resided at Marquet Street RHODES NSW 2138 with Ms Sun until May 2017 and said he did not update this address with the Commonwealth Bank or his phone provider as he could access his bank statements and phone bills online. He said Marquet Street RHODES NSW 2138 was rented from a sub-lessor and he is unable to provide a lease agreement for that address. He said all the tenants shared bills and paid the sub lessor directly via EFT. He said he registered his ABN as a sole trader in February 2017 and noted his postal address as Marquet Street RHODES NSW 2138. He provided an extract from the Australian Business Register for ABN 96 736 465 119 for the entity (individual/sole trader) in his name (JIAREN FELIX HAN) dated 25 February 2017, which indicated the postal/business address at Marquet St, RHODES, NSW 2138.

28. The applicant stated that in his home country they do not use paper-based bills or letters and they do not update their address for documents, so he is not used to updating his postal address. The applicant said he is a law-abiding person, he travelled to Australia with the intention of residing permanently. He purchased a property in Roseberry in 2017 and has a loan on that property. He completed his qualifications at Macquarie University in August 2020 and has been employed as an administrative assistant. He plans to undertake further studies to benefit his career. He said he understands the consequences of providing bogus documents and he had no reason to risk his future for permanent residency. He said he never intended to submit any altered documents to the Department.

29. As noted above, the applicant declined to attend the hearing and requested the Tribunal to make a decision on the material before it. The Tribunal has accordingly considered the evidence before it as follows.

30. The Tribunal gives significant weight to the outcome of the document examination investigation. Examination of the above listed bank statements and phone bills revealed that the postal addresses on those documents had been intentionally altered. The forensic examination of those documents also revealed details of the actual (genuine) addresses associated with those documents.

31. The Tribunal has considered the applicant’s claim that he provided the documents (his Commonwealth Bank statements and Vodaphone bills) to Ms Sun, he was not aware which ones were submitted with the application and does not know why the addresses were altered. The Tribunal has considered further below the circumstances of the non-compliance and why the addresses may have been altered, but for the purpose of determining whether there was non-compliance with s.103 of the Act, as described in the s.107 notice, the Tribunal notes that it is not necessary to establish that the applicant had any knowledge of or was personally responsible for the alteration of those documents. Section 103 requires that a non-citizen must not give, present, produce or provide to an officer, an authorised system or the Minister or a tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented, produced or provided. Accordingly, if it is found that a bogus document has been so provided, or caused to be provided, then the applicant will have failed to comply with the obligation in s.103 of the Act.

32. On the evidence before it, the Tribunal finds that the Commonwealth Bank statements and Vodaphone bills (listed above) have been altered by a person who does not have the authority to do so. It follows that those documents are bogus documents as defined in s. 5(1)(b) of the Act. The bogus documents were provided with the Subclass 190 visa application in which the applicant was included as the de facto partner of Ms Sun. Consequently, and the Tribunal finds, that the applicant has provided (or caused to be provided) to an officer, authorised system, or the Minister a bogus document in relation to the Subclass 190 visa application.

33. For the above reasons, the Tribunal finds that there was non-compliance with s.103 of the Act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

34. 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).

35. 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 Tribunal’s consideration of each of the prescribed circumstances in reg 2.41 of the Regulations follows:

    The correct information

36. The non-compliance in this case relates to the provision of bogus documents. The s.107 notice did not particularise information that was said to be incorrect. Accordingly, the Tribunal gives neutral weight to this factor in its considerations.

    The content of the genuine document (if any)

37. The documents in issue (as listed above) are the Commonwealth Bank statements and Vodafone bills for the applicant and Ms Sun, which were purportedly addressed to them at Marquet St, Rhodes NSW 2138. Forensic examination of these documents found that the addresses officially linked to those documents were different. The genuine addresses associated with the documents were at Walker St, Rhodes NSW 2138, Anzac Parade Kingsford NSW 2032, Tulip Street Chatswood NSW 2067 and Kennedy St, Kingsford NSW 2032.

38. The Tribunal considers that the documents in issue, which were provided with the Subclass 190 visa application, had been intentionally altered. The Tribunal has had regard to the applicant’s evidence that he gave his documents to Ms Sun who lodged the application, that he was not aware which documents were submitted and why the addresses were altered. Even if the Tribunal accepts that the applicant was not personally responsible for the alteration of the addresses on the above listed documents, this does not change the fact that the genuine addresses on those documents were altered by someone who did not have the authority.

39. The Tribunal considers that the addresses on the documents in the name of the applicant and Ms Sun were altered for the purpose of demonstrating that Ms Sun and the applicant, who was included in Ms Sun’s Subclass 190 visa application as her de facto, had the same residential address during 2015 and 2016.

40. The Tribunal considers intentional unauthorised alterations made to the content of genuine documents to be significant and gives weight to this consideration in favour of cancelling the applicant’s visa. 

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

1. As noted above, the applicant applied for the Subclass 190 visa as a member of the family unit (de facto partner) of Mr Sun. To satisfy the definition of de facto partner, as provided for s. 5CB of the Act, the applicant would have had to demonstrate among other things that, he and Ms Sun lived together or did not live separately and apart on a permanent basis: s.5CB(2)(c).  

2. According to the particulars of the s.107 notice, which was also set out in the delegate’s decision record, the applicant and Ms Sun claimed to have commenced a de facto relationship on 15 August 2015 and to have resided at Marquet St, Rhodes NSW 2138. As evidence of their cohabitation, the applicant and Ms Sun provided bank statements and phone bills dated between 2015 and 2016 (as listed above) which were issued to each of them and showed the same address at Marquet St, Rhodes NSW 2138. The Tribunal is satisfied that the decision to grant the applicant the Subclass 190 visa (as a member of Ms Sun’s family unit) was based, in part, on the bogus documents which indicated that the applicant and Mr Sun had been residing together at the same address at Marquet St, Rhodes NSW 2138.

3. The Tribunal considers it significant that the decision to grant the applicant a permanent residence visa was based, partly, on a bogus document and gives weight to this consideration in favour of cancelling the applicant’s visa. 

   The circumstances in which the non-compliance occurred

4. The non-compliance occurred when the bogus documents (as listed above) were provided with the Subclass 190 visa application. The Tribunal has considered the applicant’s claim that he gave his documents to Ms Sun who lodged the application and attached the documents. It has also had regard to the claim that he was not aware which documents were submitted to the Department or why the addresses were altered.

5. As noted above, the visa application form required the applicants to declare that all information on the form, and any attachments provided, were complete and correct in every detail. The Tribunal considers it somewhat concerning that the applicant did not know which documents were submitted to the Department on his behalf. The Tribunal considers that even if the applicant relied on Ms Sun to lodge the application and provide supporting documents, the onus was on him to ensure that the information and documents provided on his behalf were genuine.

6. The applicant denied knowing why the addresses were altered, however, as discussed above, the Tribunal considers that the genuine addresses associated with the relevant documents were altered (by someone without authority) for the purpose of demonstrating that the applicant and Ms Sun resided at the same address at Marquet St, Rhodes NSW 2138 between 2015 and 2016.

7. The Tribunal has considered the applicant’s evidence that he resided at Walker St, Rhodes NSW 2138 in 2015 and his claim to have subsequently moved to Marquet St, Rhodes NSW 2138 to reside with Ms Sun until mid-2017. The Tribunal has also considered the applicant’s claim to have forgotten to update his residential address to Marquet St, Rhodes, NSW 2138, with the bank and phone provider, as this was not a common practice in his home country.

8. In considering the applicant’s evidence, the Tribunal accepts that the applicant resided at Walker St, Rhodes, NSW 2138. This is evidenced by the lease agreement provided by the applicant which shows that he had signed a six-month tenancy agreement (from 26 February 2016 to 25 August 2015) in respect of that residence. This is also consistent with the outcome of the forensic examination which indicated that one of the genuine addresses associated with the documents was Walker St, Rhodes, NSW 2138. The evidence confirms, as found by the forensic examination investigation, that some of the documents provided with the visa application had been deliberately altered. The applicant’s claim to have forgotten to change his residential address does not overcome the fact (as found above) that the genuine addresses on the above listed documents, which were provided with the Subclass 190 visa application, had been intentionally altered by a person without authority.

9. The Tribunal has had regard to the Australian Business Register document issued on 25 February 2017 for the individual/sole trader entity which bears the same name as the applicant, showing the postal/business address at Marquet St, Rhodes NSW 2138. The Tribunal is not satisfied that this document demonstrates that the applicant and Ms Sun resided together in a de facto relationship since August 2015 as claimed. Nor does this document overcome the concerns regarding the alteration of addresses on other documents, dated between 2015 and 2016, that were provided with the Subclass 190 visa application.

10. The Tribunal considers that the non-compliance, being the provision of bogus documents as evidence of the applicant’s cohabitation with Ms Sun, was intentional and provided for the purpose of securing a migration outcome for the applicant. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

11. The applicant has not provided any current information to the Tribunal regarding his present circumstances. The Tribunal has however considered the applicant’s circumstances as detailed in response to the s.107 notice.

12. The Tribunal accepts that the applicant arrived in Australia over seven years ago (since 2015), and that he has since completed studies in Australia. The Tribunal also accepts that the applicant would like to undertake further studies in Australia, that he intended to reside permanently in Australia and that he had purchased a property in Australia for which he has been paying the mortgage. The Tribunal also accepts that the applicant had been employed as administrative assistant by Triple S Rental Pty Ltd.

13. Given the length of time that the applicant has been living in Australia, the Tribunal accepts that he has established educational, economic and employment ties. In the circumstances, the Tribunal considers that cancellation of the visa may cause hardship for the applicant and gives some weight to this consideration in favour of not cancelling the visa.

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

14. There is no adverse information before the Tribunal regarding the applicant’s subsequent behaviour regarding his obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.

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

15. There is no information before the Tribunal which suggests that there were any other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.

    The time that has elapsed since the non-compliance

16. The non-compliance occurred when the bogus documents were provided in support of the visa application, which was lodged on 31 May 2017. The Tribunal accordingly finds that more than five years have passed since the non-compliance. The Tribunal considers this period to be a long time and gives this consideration some weight in favour of not cancelling the visa.

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

17. The applicant claims to be an honest and law-abiding person. There is no evidence before the Tribunal which suggests that the applicant has breached any laws since the non-compliance. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.

    Any contribution made by the holder to the community.

18. There is limited evidence before the Tribunal regarding the applicant’s contribution to the community. The Tribunal gives neutral weight to this consideration.

19. 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

20. The applicant was granted the visa on the basis of satisfying the secondary criteria as a member of the family unit of Ms Sun. The cancellation of his visa, as a secondary applicant, would not by operation of law (under s 140 of the Act) result in the cancellation of the visa of any other person. The Tribunal accordingly gives neutral weight to this consideration.

    Whether there are children whose interests would be affected by cancellation

21. There are no children whose interests would be affected by the cancellation of the applicant’s visa. The Tribunal gives neutral weight to this consideration.

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

22. There is no evidence, and the applicant has not claimed, that cancellation of his visa would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. The Tribunal gives neutral weight to this consideration.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

23. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if he does not depart Australia within the validity period of any bridging visa he currently holds or if he is not granted another visa to remain in Australia. The Tribunal acknowledges that if the visa is cancelled the applicant will be affected by s 48 of the Act, which (without the Minister’s intervention) limits the types of visas he can apply for onshore. The applicant may also be subject to an exclusion period in relation to future visa applications.

24. The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation and gives this consideration limited weight in favour of not cancelling the visa.

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

25. As discussed above, the Tribunal accepts that cancellation of the visa may cause personal and financial hardship for the applicant and gives some weight to this consideration in favour of not cancelling the visa. 

    Conclusion

26. The Tribunal has carefully considered all the evidence before it and weighed up the circumstances in favour of not cancelling the visa against those in favour of cancellation. While the length of time the applicant has been in Australia, his employment ties and assets in Australia weigh in favour not cancelling the visa, the Tribunal considers that these are outweighed by the circumstances (as discussed above) in favour of cancellation. The Tribunal considers that the integrity of Australia’s migration program relies on the provision genuine documents. In this case documents were provided which were bogus, and these documents, in part, led to the grant of a permanent residence visa. These factors, together with other circumstances in favour of cancellation, lead the Tribunal to conclude that the Subclass 190 visa should be cancelled.

    decision

27. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    R. Skaros
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

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

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

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

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

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

    97Interpretation

    In this Subdivision:

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

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

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

    98Completion of visa application

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

    99Information is answer

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

    100Incorrect answers

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

    103Bogus documents not to be given etc.

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

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

    107Notice of incorrect applications

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

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

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

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

    (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

    (f)      requiring the holder:

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

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

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

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

    (b)     otherwise—14 days.

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

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

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

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

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

    108Decision about non‑compliance

    The Minister is to:

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

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

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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