He (Migration)

[2022] AATA 118

He (Migration) [2022] AATA 118 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhenqiao He

CASE NUMBER:  2111799

HOME AFFAIRS REFERENCE(S):          BCC2019/3330348

MEMBER:Kira Raif

DATE:17 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 17 January 2022 at 6:01pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – bogus documents with the visa application – contrived de facto relationship – no cohabiting – no established joint household or shared finances – property purchase – employment in an occupation in demand – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 98, 101-105, 107-109, 140
Migration Regulations 1994; r 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 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in June 1989. He was granted the Skilled visa in September 2017. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his 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

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

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

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

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

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

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

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

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Skilled visa on 22 Mach 2017 and included in that application Ms Liang Na Jia as his de facto partner. The applicant stated that he and Ms Jia commenced a de facto relationship in August 2015 and provided Ms Jia’s personal details. The applicant also completed a declaration on the form confirming that the information he provided was complete and correct in every detail.

10. In support of the claimed relationship the applicant provided a number of documents, including

    -correspondence from Flybuys addressed to Ms Jia at a Kareela address,

    -bank statements issued in the name of Ms Jia by Commonwealth bank at the Kareela address for the period between May 2015 and April 2016 and at a Rhodes address from May 2016 to March 2017,

    -gas bills in joint names of the applicant and Ms Jia for the period from August 2016 to January 2017,

    -the applicant’s own bank statements from Commonwealth bank issued at the Kareela address,

    -bank statements in joint names of the applicant and Ms Jia, issued to the Rhodes address, for the period from May 2016 to March 2017,

    -a statement entitled ‘Love Story’ in which the applicant claimed that he and Ms Jia had lived together from August 2015 when their de facto relationship began.

11. The applicant and Ms Jia were granted the Skilled visas in September 2017. The primary decision record indicates that following the visa grant, the Department conducted a forensic examination of the presented documents which determined that the letter from Flybuys to Ms Jia, Commonwealth bank records in Ms Jia’s name and in joint names and the gas bills had residential addresses that did not match the residential addresses officially linked and registered to these documents. The delegate concluded that these were bogus documents.

12. The primary decision record indicates that the applicant and Ms Jia provided different residential addresses in their Incoming Passenger Cards upon arrival in Australia after August 2015, in particular Ms Jia had shown addresses in Victoria and South Australia. The delegate notes that the applicant and Ms Jia never travelled outside of Australia together, which brings into question the existence of a de facto relationship between them.

13. In his response to the NOICC the applicant states that Ms Jia approached him once she learned that he received an invitation to apply and he felt sorry for her and agreed to help her in exchange for financial assistance in lodging the visa application as he had no money. The applicant states that they had some contact and when they were taking photographs for the application, they felt attracted to each other and he wanted to have a relationship with her. The applicant states that the documents and all preparation was done by the agent and he did not know what documents were submitted by the agent.

14. In oral evidence to the Tribunal the applicant‘s evidence was somewhat different. The applicant told the Tribunal that he had no relationships since coming to Australia and he was lonely and he met Ms Jia and they started a relationship. The applicant states that they were introduced by the migration agent and had some contact. The applicant states that he wanted a relationship and he thought if she was included in the visa, the relationship would become more stable. The applicant states that the agent suggested that he could include another person in the application and after he received the invitation to apply, he decided to include Ms Jia in the application but he did not include her in the EOI. The applicant states that they met online a few months before the application but they met for the first time in person around March 2017 and by that time he felt attracted to her. The applicant told the Tribunal that after the application was made, they still kept in touch and he tried to persuade her to have a relationship and he thought she had the same feelings but after the visa was granted, they lost contact and he feels like he had been ‘used’.

15. The Tribunal has considerable concerns about the applicant’s evidence. His response to the NOICC does not suggest that there was a relationship between them and, at best, he claims there was limited contact prior to the preparations for the application being made and that they felt attracted to each other after they met in person to take photographs. His oral evidence to the Tribunal appears to suggest that the relationship started to develop before they met in person and that they were considering a mutually committed and a long term relationship. The Tribunal has formed the view that the applicant has exaggerated (or fabricated) the nature of his relationship with Ms Jia in his evidence to the Tribunal because he believed that having a relationship with Ms Jia would be more beneficial to him.

16. Even if the applicant’s evidence to the Tribunal is accepted as truthful (and the Tribunal does not consider this to be the case), the applicant’s evidence is that there was some electronic contact between him and Ms Jia for a few months before his application was made (not sufficient for him to include Ms Jia in the EOI) and they formed some sort of friendship a few weeks before the application was made. The Tribunal is of the view that the applicant was well aware that his relationship with Ms Jia was not a de facto one. Indeed, the Tribunal does not consider that the applicant genuinely believed there was any sort of relationship between them. While the applicant states that he wanted a relationship with Ms Jia and they talked about having a committed relationship, a desire to have a relationship or future plans for a relationship does not equate to having a relationship. There is no evidence that the applicant and Ms Jia established a joint household, shared their finances, assets or liabilities, represented themselves to others as being in a relationship, planned and undertook social activities as a couple, were mutually committed to an exclusive relationship or had viewed the relationship as a long term one. By the time application was made, the applicant told the Tribunal that he travelled to Sydney to see Ms Jia 3-4 times and saw each other for a few days and the Tribunal is not satisfied that they formed a relationship in that short period of time. More importantly, the Tribunal does not accept that the applicant believed himself to be in a relationship with Ms Jia. The Tribunal is of the view that the applicant’s evidence in his declaration made in August 2021 in response to the NOICC is more truthful and accurate and that Ms Jia who was an acquaintance or, at best, a friend of the applicant, approached the applicant to include her in application in return for her paying his application fee and the agent fees.

17. The applicant’s evidence confirms that he did not have a de facto relationship with Ms Jia since 2015. The applicant also confirms that he never lived with Ms Jia as the applicant states that they lived in different states. At best, they spent a few days with each other prior to the application being made. Having regard to that information, as well as the results of the forensic examination as set out in the primary decision record, the Tribunal finds that the bank statements and the Flybuys letter showing the applicant and Ms Jia residing at the same addresses in NSW are bogus documents because they had been altered by a person with no authority. The Tribunal finds that the applicant gave, presented or provided to an officer or the Minister, bogus documents or caused such documents to be so given, presented or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

18. The Tribunal further finds that the applicant gave an incorrect answer on the form and in the accompanying ‘Love story’ by claiming to be in a de facto relationship with Ms Jia from August 2015 and by claiming that they lived together from that date. The Tribunal finds that the applicant completed the form in a way that incorrect answers were given or provided. The Tribunal notes that under s. 98, the applicant is taken to have completed the form even if it was completed by someone else.

19. The Tribunal finds that there was non-compliance with ss. 101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. 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).

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

    The correct information

22. The correct information is that the applicant did not have a de facto relationship with Ms Jia from August 2015 and she was not a member of the applicant’s family unit when the application was made . The correct information is that the applicant and Ms Jia did not reside together prior to the visa application being made.

    The content of the genuine document (if any)

23. The content of the genuine documents would not show the applicant and Ms Jia cohabiting at the same address. The genuine documents would not be addressed to the applicant and Ms Jia at the same address. .

    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

24. The applicant submits in his response to the NOICC and his evidence to the Tribunal that he met the requirements for the visa grant in his own right and that he would have obtained the necessary points irrespective of his relationship. To the extent that the applicant claims the visa grant was not based on incorrect information or bogus documents, the Tribunal does not accept that claim. The Tribunal accepts that the applicant may not have needed rely on Ms Jia to claim additional points and did not need to include Ms Jia in his application to meet the visa criteria. That is, there was no visa benefit (as opposed to financial benefit) for Ms Jia to be included in the applicant’s visa application. However, the allocation of points is not the only criterion for the visa grant and the applicant was required to meet other criteria, including character and PIC 4020.

25. Even though the applicant did not claim additional points on the basis of his relationship, the applicant did make the decision to include Ms Jia. Once the applicant made the decision to include Ms Jia in his application, the applicant gave information in the application that was false or misleading in a material particular by claiming to be in a de facto relationship with her (which was relevant to the assessment of secondary criteria) and he provided bogus documents with the application to evidence that  relationship. The provision of that information and documents was likely to attract the operation of PIC 4020.

26. Thus, the Tribunal considers that a distinction must be made between the applicant’s need to rely on Ms Jia to meet the visa criteria and the fact that the inclusion of Ms Jia in the application was relevant to the assessment of criteria such as PIC 4020 that was part of the applicant’s visa assessment. Whether or not the applicant ‘needed’ to rely on Ms Jia, he did make the decision to include her in his application and, in doing so, provided bogus documents and false or misleading information. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

27. These are addressed by the applicant in his response to the NOICC and evidence to the Tribunal. Essentially, the applicant states in his evidence to the delegate that he had no money when he was planning to apply for the visa. He was approached by Ms Jia who promised to help meet the costs of the application if he included her in the application and he agreed as he felt sorry for her and liked her and wanted a relationship with her. The applicant states that he provided some documents to the agent at his request but all arrangements were done by the agent, who prepared an email address not used by the applicant and he was not involved in, nor aware of, the preparation of bogus documents. The applicant states that he took some photographs with Ms Jia and he hoped including her in the application would lead to their relationship as he liked Ms Jia and wanted to have a committed relationship with her. The applicant submits that the fraud was perpetrated by the agent and Ms Jia.

28. In his declaration in response to the NOICC and his evidence to the Tribunal the applicant states that he met Ms Jia a few times before making the visa application and wanted a relationship with her. The applicant states that they saw each other a few times and had developed feelings for each other and he hoped there would be a relationship between them.

29. The Tribunal finds the applicant‘s evidence problematic. The applicant’s evidence in response to the NOICC is that he met Ms Jia in mid-February 2021 (ie shortly before the application was made) and that she made contact with him after learning that he received an invitation to apply for the visa. The applicant suggested that there were some feelings between them. The applicant’s evidence to the Tribunal is that they met much earlier (and met in person around February – March 2021) and that they had contact irrespective of the visa process. The Tribunal has formed the view that the applicant had exaggerated the nature of his relationship with Ms Jia in his evidence to the Tribunal. As noted above, the Tribunal rejects the applicant’s evidence that there was a de facto or any other relationship between him and Ms Jia at the time he made the application for the visa and the Tribunal is not satisfied the applicant was entirely truthful when claiming they had feelings for each other at that time. The Tribunal has also formed the view that the applicant was aware that he was not in a de facto relationship with Ms Jia (even if he wanted one) and he was also aware that this claim was made in his visa application.

30. In his response to the NOICC the applicant states that the bogus documents were prepared by the agent, that he did not review the application (he told the Tribunal he signed form 80 without reading the form) and did not have access to the email address used in the application. However, as the Tribunal has found that the applicant was aware of Ms Jia’s inclusion as his de facto in the application and that he was aware that the relationship did not exist, the Tribunal finds that  the applicant was aware of the fraud and had authorised it. He had been actively involved in the perpetration of the fraud by taking photographs with Ms Jia (he refers to taking photographs on a bed at the suggestion of their migration agent). Thus, whether the applicant prepared the bogus documents himself or authorised (expressly or by his failure to act) the agent to do so, the Tribunal finds that the applicant was involved in the fraud and that the fraud occurred with his knowledge and permission.

    The present circumstances of the visa holder

31. The applicant states that he travelled to Australia in 2013, completed his study in Australia and has settled in this country since that time. The Tribunal accepts that the applicant has been living in Australia for a lengthy period and that he is settled in this country and has formed employment, social and financial ties.

1. In his evidence to the delegate the applicant refers to his relationship with Ms Huang. The applicant told the Tribunal that he asked her to help him with the visa process but the relationship ended around October 2021. He recently started another relationship.

2. The applicant provided evidence of having purchased a property and he provided in his response to the NOICC various documents concerning that property, as well as a mortgage statement to the Tribunal. The applicant states that if he has to sell the property he may lose money and he may not have the funds to sell. The applicant presented no evidence of the property’s value or sale value but the Tribunal is prepared to accept that the cancellation of the visa is likely to cause financial hardship to the applicant.

3. The applicant refers to his employment, noting that he works as an engineer which is an occupation in demand. He provided to the Tribunal evidence of his past employment and an offer of employment, as well as general information about skills shortage of engineers in Australia. The Tribunal accepts that evidence. The applicant told the Tribunal that he asked his employer for a reference and the employer was worried that he has no work rights and as a result, he lost his job. The applicant states that his employer told him that if he gets his visa back, he could return to work. in the meantime, he has been offered another job which he would commence shortly. The applicant also provided evidence of having registered a business. The Tribunal accepts the applicant’s evidence and generally accepts that the applicant is employed in an occupation in demand and that  he contributes to the Australian economy through his employment.

4. The applicant spoke about his family background and upbringing and the hardship he and his family had experienced to enable him to study and live in Australia. The Tribunal accept that evidence and generally accepts that the cancellation of the visa would cause considerable hardship to the applicant if it were to result in the applicant being required to leave Australia. The applicant states that his parents had sacrificed everything for him to come to Australia and he has sponsored his parents and if his visa is cancelled, he would be unable to continue with that sponsorship. The Tribunal accepts that.

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

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

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

6. There are no known instances of non-compliance and the applicant submits he has complied with his legal obligations.

   The time that has elapsed since the non-compliance

7. The application was made in March 2017 and close to five years passed since the non-compliance. This is not an insignificant period.

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

8. There are no known breaches of the law.

   Any contribution made by the holder to the community.

9. The applicant refers to his work with the homeless and the donations he has made to various causes. The applicant refers to his employment in an occupation in demand. Shortly before the hearing the applicant provided to the Tribunal evidence of his participation in voluntary activities and of having made various donations. The applicant also spoke about his involvement in the sporting activities and extensive social ties. The applicant provided to the Tribunal accepts that  evidence and accepts the applicant has made a contribution to the community.

10. 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.

11. The visa held by Ms Jia has been cancelled under s.109. There does not appear to be any person whose visa would be subject to cancellation under s. 140.

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

12. There are no children who would be affected by the cancellation of the visa.

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

13. There is no evidence, and the applicant does not claim, that the cancellation of his visa, if it were to lead to removal, would be in breach of Australia’s non-refoulement obligations. The applicant has no close family in Australia. The Tribunal does not consider the family unity obligations would be breached as a result of the cancellation.

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

14. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore. The cancellation of the applicant’s visa may affect his father’s eligibility for the visa.

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

15. The applicant refers in his evidence to the delegate to his relationship with an Australian citizen and the hardship that would  be caused if he is required to leave Australia. the applicant’s evidence to the Tribunal is that  the relationship has ended.

16. The applicant  provided to the Tribunal several character references and the Tribunal accepts that the persons who prepared the references believes the applicant to be a good person.

17. The applicant told the Tribunal that the work that he does in Australia may not be useful in China which has different standards, and it may be hard for him to work in China, given his age and experience in Australia and knowledge of Australian standards and not Chinese standards. The applicant states that it would be difficult for him to support his parents and grandparents who brought him up and his sister who relies on his parents. When asked why he cannot acquire local technical knowledge, the applicant referred to his age and stated that he would not be able to work as a senior engineer. Thus, the applicant does not suggest that he would be unable to work in China, rather than the occupation may not be at the same level as his employment in Australia. The Tribunal accepts the applicant’s evidence that given his experience and formal schooling in Australia, he may be unable to perform his work at the same level in China, at least unless he acquires some qualifications or experience in China. The Tribunal is also prepared to accept (despite the paucity of evidence) that the applicant provides support to his family in China and that the financial support may be diminished if the applicant was to leave Australia and work in China. The Tribunal generally accepts that the cancellation of the visa may cause financial hardship to the applicant and his family and reduce the applicant’s capacity to support his family in China.

18. The applicant refers to the emotional hardship arising from his upbringing and past relationship breakdown and states that the cancellation of his visa may cause him emotional hardship and would cause his present relationship to break down again. The applicant presented very little evidence of his present relationship but the Tribunal generally accepts that hardship would be caused to the applicant by the cancellation, including emotional hardship.

19. The applicant expressed regret about the poor decisions he had made and remorse for his actions. The Tribunal acknowledges the applicant’s evidence.

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

20. The Tribunal has formed the view that there are reasons why the visa should not be cancelled. Most significantly, the Tribunal places weight on the length of time the applicant has lived in Australia, the extensive ties he has formed, his employment and capacity to contribute to Australia through his employment in an occupation in demand. The Tribunal also accepts that considerable hardship would be caused to the applicant and others by the cancellation of the visa, including hardship to his parents and sister who rely on the applicant, as well as the applicant himself. The Tribunal acknowledges that there are no immediate options for the applicant to make an application for another Australian visa, although the Tribunal is mindful that such options may exist in the future on the basis of the applicant’s qualifications and work experience. Nevertheless, even if the applicant was to make another visa application, the Tribunal accepts that it may be a significant period of time before the applicant is able to apply for another visa and there can be no certainty of the visa grant. These are strong reasons why the visa should not be cancelled.

21. However, in the circumstances of this case, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information and bogus documents. In this case, the applicant concedes that he included the secondary applicant as his de facto partner when such relationship did not exist (and the Tribunal has formed the view that the applicant was aware that the de facto relationship did not exist even if his evidence to the Tribunal is that there was some contact between them and some feelings and a desire for a relationship on his part). The applicant included Ms Jia partly to gain a financial benefit. The Tribunal has formed the view that the applicant was aware of the fraud and complicit in it by allowing the agent to include the secondary applicant in the application and taking some photographs with Ms Jia to create the false impression that the relationship existed. Even though the applicant claims it was the agent or Ms Jia who created the bogus documents and perpetrated the fraud, the Tribunal has found that the applicant had full knowledge of, and involvement in that fraud and agreed for it to go ahead. Thus, the applicant’s culpability cannot be minimised by reference to the actions of others.

22. The Tribunal has also rejected the applicant’s evidence that he did not need to include the secondary applicant as he was entitled to the visa in his own right. While that may have been the case, the applicant did make the decision to include the secondary applicant and, having made the decision, criteria such as PIC 4020 and possibly the general character provisions became more relevant. The issue here is not what could have happened if the applicant did not include the secondary applicant in his application but what in fact did happen and that was the deliberate provision of false information and bogus documents by the applicant in return to financial gain. In the Tribunal’s view, these factors weigh strongly in favour of the cancellation.

23. Having regard to the applicant’s conduct when applying for the visa and the fact that the decision to grant the visa was based, in part, on incorrect information and bogus documents, and having considered the totality of the applicant’s circumstances, the Tribunal has decided to place greater weight on the factors that weigh in favour of the cancellation.

24. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

25. :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

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif
    Senior Member