He (Migration)

[2022] AATA 2584

He (Migration) [2022] AATA 2584 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jingtao He

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2117052

HOME AFFAIRS REFERENCE(S):          BCC2021/1747345

MEMBER:Kira Raif

DATE:1 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2022 at 2:49pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled – Nominated – incorrect information in the visa application – bogus documents – member of the family unit – no genuine relationship – applicant sponsoring his new wife for a Partner visa – impact on the applicant’s employer – household registration – best interests of the Australian citizen child – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 48, 101-105, 107, 109, 140, 359AA
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 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in June 1987. He was granted the Skilled visa in January 2017. In October 2021 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 ss 101 and 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant is seeking review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Zhang. 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. 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.

6. 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?

7. 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.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for a Skilled visa on 6 January 2017. He was included as a secondary applicant in the application made by Ms Yishi Liu and claimed to be a de facto partner of Ms Liu, stating that their relationship began in December 2015. The applicant completed a declaration on the application form, stating that the information he provided in the application was complete and correct in every detail.

9. In support of his claimed relationship with Ms Liu, the applicant provided a number of documents, including:

   a.four Vodaphone bills sent to Ms Liu at a Haymarket address, issued between December 2015 and March 2016;

   b.two Vodaphone bills sent to the applicant at the same Haymarket address, issued in December 2015 and January 2016;

   c.two Commonwealth bank statements in the applicant’s name, sent to the Haymarket address, for the period between December 2015 and March 2016;

   d.an NRMA car insurance certificate addressed to the applicant at a Waterloo address for 2016-17.

10. The applicant and Ms Liu were granted the Skilled visas on 18 January 2017. The primary decision record indicates that following the visa grant, the Department carried out an investigation of the above documents, which determined that there was evidence of intentional alteration to the documents. The delegate concluded that these were fraudulently altered by a person without authority and were bogus documents. The primary decision record indicates that the Haymarket address on the Vodaphone bills addressed to Ms Liu was altered and the correct address for that correspondence was to an address in Carlingford. It is also stated that the Vodaphone and Commonwealth bank records in the applicant’s name had been altered and the correct address for that correspondence was an address in Rhodes.

11. The primary decision record indicates that 

    a.In 2018 the applicant sponsored his partner Ms Zhang for a Partner visa and she gave the same address at Rhodes as her residential address from October 2015 to February 2018. 

    b.Ms Zhang’s name appears on several transactions in the above bank statements, which would indicate that the applicant and Ms Zhang had known each other since December 2015.

    c.The applicant gave the Rhodes addresses in his incoming passenger card (IPC) in December 2015 and August 2016, contrary to the information in the Skilled visa application.

    d.The front page of the NRMA car registration shows that the vehicle was kept at Waterloo but on the next page the address where the vehicle was kept was shown as the Rhodes address, the same address as was given by Ms Zhang in her Partner visa application.

12. The delegate concluded that the applicant and Ms Liu did not live together at the Haymarket address, as claimed in the Skilled visa application, and did not have a genuine relationship.

13. In his written response to the NOICC the applicant states that after graduating in 2016 he found an agent who told him that that he could obtain permanent residence quickly and legally. The applicant states that he gave only genuine documents to the agent and did not know what documents had been submitted. The applicant refers to his work commitments and states that he was under stress and completely trusted the agent. The applicant states that he accepts the responsibility for the application but he had only provided genuine documents and was unaware of the content of his visa application.

14. The applicant provided a further written statement to the Tribunal on 27 June 2022. (No explanation has been offered by the applicant or his representative for such a late submission of documents and evidence, nor for the non-compliance with the Tribunal’s Practice Directions). In that statement the applicant refers to his present circumstances (which are addressed below) but offers no further explanation of the circumstances relating to his Skilled visa application.

15. In oral evidence, the applicant told the Tribunal that he had ‘a crush’ on Ms Liu but they were not in a relationship. The applicant states that they knew each other for about a month before the application was made and they were ‘just friends’. The applicant confirms they were not in a de facto relationship.

16. The Tribunal finds, having regard to the applicant’s own evidence, that the applicant was never in a de facto relationship with Ms Liu. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided by stating, in response to questions on the form, that he was a de facto partner of Ms Liu and that their relationship commenced in December 2015. The Tribunal finds that there was non-compliance with s 101 of the Act.

17. The Tribunal further finds, having regard to the Departmental investigation outlined in the primary decision record and the applicant’s own evidence, that the Commonwealth bank statements, Vodaphone bills and the NRMA car insurance policy are bogus documents withing the meaning of s 5(b) as they had been altered by a person without authority. The Tribunal finds that the applicant gave, presented or provided bogus documents or caused such documents to be given, presented or provided. The Tribunal finds that there was non- compliance with s 103 of the Act.

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

    Should the visa be cancelled?

19. 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).

20. 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 reg 2.41 of the Migration Regulations 1994 (Cth). They are:

    The correct information

21. The correct information is that the applicant never had a de facto relationship with Ms Liu and they had not lived together at the same address. The applicant agrees that is the case.

    The content of the genuine document (if any)

22. Genuine documents would not show the applicant and the primary visa applicant living 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

23. When applying for the Skilled visa, the applicant relied on meeting the secondary criteria. There is nothing before the Tribunal to indicate that the applicant met the primary criteria for visa grant, nor that he sought to rely on meeting the primary criteria when making the application.

24. To meet the secondary criteria, the applicant had to establish that he was a member of the family unit of Ms Liu. The only way in which he could meet that requirement is if the applicant was the spouse or de facto partner of Ms Liu, as he was not able to meet any of the alternative criteria for being a member of the family unit. Thus, the applicant’s de facto relationship with Ms Liu was central to his eligibility for visa grant. If the applicant could not establish that he was the spouse or de facto partner of Ms Liu, the applicant is unlikely to have been granted the visa.

25. The applicant would have also been required to meet PIC 4020. The applicant concedes that he provided bogus documents and false or misleading information with the visa application. If that information was known to the delegate, that may have affected the assessment of PIC 4020.

26. The Tribunal finds that the decision to grant the visa was based on incorrect information and bogus documents. The applicant concedes that is the case.

    The circumstances in which the non-compliance occurred

27. In his response to the NOICC the applicant states that after completing his studies, he was too busy and stressed and entrusted his application to a migration agent, who promised a lawful, quick and easy way of obtaining the visa. The applicant claims that he did not see the application form and did not know what documents had been submitted.

28. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal does not accept that the applicant was entirely ignorant of Australia’s immigration laws, having travelled to Australia on a student visa and completed his study in Australia presumably with the intention of obtaining the Australian visa. Having formed that intention, the Tribunal does not accept that the applicant had no knowledge of the bases on which he could seek the visa or was unaware that he would have to complete an application form. Thus, the Tribunal is of the view that the applicant had the option and the opportunity to check the content of his application and ascertain the basis of his application.

29. The Tribunal is also of the view that the applicant had the responsibility to check the content of the application forms and the application itself before its lodgement. The applicant had no way of ensuring the accuracy of the information in the application if he had not seen it, whether or not he trusted the agent. If the applicant claims he had not seen the application form or the paperwork submitted with the application, that indicates that the applicant was completely indifferent to the veracity of the information contained in it.

30. The Tribunal is also of the view that the applicant was aware that his application contained incorrect information and even if he was completely ignorant of the Australian laws, the applicant would have appreciated that he could not rely on false grounds to make the visa application. The applicant claims he was misled by the agent, who initially told him he would register the relationship but later did not, but in the Tribunal’s view that is irrelevant in the circumstances where the applicant was aware – on his own evidence – that he did not have a de facto relationship with Ms Liu.

31. The applicant also claims that he did not know when the application was lodged and it was only about a month later that he knew the application was made but, again, the Tribunal does not consider that irrelevant because the applicant knew the application was being prepared (having provided the agent with documents and fees and the application fee) and he was aware of its content.

32. The applicant told the Tribunal that he had met the agent socially and the agent told him that because of his relationship with Ms Liu, he could be added in her application, and the agent would help them register their de facto relationship, and he did not know about the 12 month requirement. However, the applicant also told the Tribunal that he did not consider he was in a de facto relationship with Ms Liu. The applicant states that the agent told them that as long as they both agreed to it, they could register the relationship. The applicant’s evidence suggests that he was aware that the application for the Skilled visa was based on the false basis of having a de facto relationship – which the applicant knew did not exist – and he decided to go ahead with it because he believed he could get away with it, as both parties were agreeable. The applicant also told the Tribunal that the agent told him they would back-date the relationship commencement date. The Tribunal finds that the provision of incorrect answers was done knowingly and deliberately and even if the applicant did not alter the documents or even see the bogus documents in his visa application, the applicant concedes that he was aware of the fraud and gave permission to the agent to go ahead with it.

33. The applicant explained to the Tribunal that the agent was his friend and he trusted the agent and did not know the details. That may be the case but the applicant’s evidence to the Tribunal is that he was aware he was applying for the visa on the basis of the non-existent de facto relationship and that the length of the relationship was misrepresented on the application form. Even if the applicant was not aware of the full details surrounding his application, the Tribunal has formed the view that the applicant was well aware of the fraud.

    The present circumstances of the visa holder

34. In his submission to the delegate the applicant refers to his relationship with his current partner and the birth of their child in October 2021. The applicant states that since he told his partner about the cancellation of his visa, she has had a ‘mental breakdown a few times’ and he cannot leave her as he is worried about her safety.

35. The applicant submits that the came to Australia in December 2015 and since that time he has travelled to China only twice. He is sponsoring his wife for a Partner visa, they have a child and they have established their lives in Australia. The applicant states that if his visa is cancelled, his wife’s application would be refused and their future plans would be disrupted. The Tribunal accepts that evidence. The applicant refers to his wife’s study and stable employment prior to her pregnancy. He states that once their child starts kindergarten, she will return to her accounting job. The Tribunal accepts that evidence.

36. The applicant states that both he and his wife have stable social connections in Australia and have spent their adult lives in Australia. They have close friendships and are ‘irreplaceable in their friends’ lives’. The friends help with babysitting and family chores. The Tribunal accepts that evidence but is of the view that if the applicant and his partner have established close friendships in Australia, they would be able to maintain such friendships irrespective of their country of residence. While the quality of any future relationships may not be the same if the applicant and his partner are to leave Australia (if that is the consequence of the visa being cancelled), there is no reason why they could not maintain friendships they have formed in Australia through electronic contact, although the Tribunal acknowledges that many of the tasks to which the applicant refers (such as babysitting for example) may no longer be possible.

37. The applicant refers to his employment, stating that he is responsible for the design and installation of solar systems. The applicant states that his skills as an electrical mechanic are being used in a critical work sector in Australia. He provided to the Tribunal evidence of his accreditation and employment. In his statement to the Tribunal submitted on 27 June 2022 the applicant states that he works for two companies and takes on his own projects, and he is accredited in solar system design and installation, and also a qualified electrician. The applicant states that there are not many qualified technicians in his field and he describes his job function and the current projects he is involved in. The Tribunal accepts that evidence. The applicant told the Tribunal in oral evidence that it would be difficult for his company to replace him and his customers may be affected if he was to leave. However, the applicant also told the Tribunal that his employer had not tried to find another employee to replace him. In the circumstances, the Tribunal does not accept the applicant’s evidence that he is irreplaceable, and while the applicant’s departure from his employers may cause some hardship in the short term, the Tribunal does not accept there would be significant hardship in the long term.  

38. The applicant provided with his submission to the delegate evidence of his property ownership and mortgage repayments, his taxation records, character references and evidence of his marriage. The Tribunal acknowledges that evidence.

39. In his written submission to the Tribunal, the applicant states that he is the main provider for his family. His son is an Australian citizen and his wife stays at home taking care of him. The applicant refers to the mortgage repayments and states that his income in China would not be sufficient to meet the mortgage repayments or pay for his child’s education, noting that his son would not be able to enrol in public schools due to his Australian citizenship. The Tribunal is prepared to accept that evidence.

1. The applicant stats that many flights to China are being cancelled due to COVID-19 and relocating would be difficult for his family. It would also be hard to get a Chinese visa for their child. The Tribunal acknowledges that evidence but is mindful that the applicant may be eligible to seek a Bridging E visa on departure grounds if he is not able to depart Australia immediately (if departure from Australia is a consequence of his visa being cancelled). The applicant refers to the family dog, stating that it would be too difficult to relocate the dog to China and they would have to leave the dog behind. The applicant states that the dog relieved his wife’s depression during pregnancy. The Tribunal accepts that these matters may cause hardship to the applicant.

2. The applicant states that his family would have to go through hotel quarantine for 14 days, which would have an adverse impact on his young son and affect his mental state. The applicant presented no evidence whatsoever to support that assertion and the Tribunal does not accept, in the absence of any probative evidence, that having to undergo 14 days’ quarantine would have an adverse effect on the child’s mental or general health, nor on the family’s wellbeing.

3. The applicant provided to the Tribunal a number of photographs evidencing his social activities. The Tribunal accepts that the applicant had engaged in these activities.

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

4. 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

5. There are no known instances of non-compliance.

   The time that has elapsed since the non-compliance

6. The application was made in January 2017 and approximately five and a half years have passed since the non-compliance.

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

7. There are no known breaches of the law.

   Any contribution made by the holder to the community

8. The applicant refers to his employment in a critical sector (renewable energy), his skills and experience, and he provided to the Tribunal his employment references, evidence of his qualifications and experience and information about skills shortage in Australia. The applicant also provided to the Tribunal evidence of having made multiple charitable donations. The applicant told the Tribunal that he contributes to charities and religious organisations and participates in community activities, as well as social activities with his friends. The applicant refers to having a good relationship with his neighbours. The Tribunal accepts that the applicant contributes through his employment and skills, charitable contributions and through other activities.

9. 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 Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s 140

10. There are no persons whose visa would be subject to consequential cancellation. The applicant states, and the Tribunal accepts, that his partner’s visa may be refused if his visa is cancelled.

    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

11. The applicant has a child born in October 2021 (he provided to the delegate the child’s birth certificate) and the child is an Australian citizen. The applicant presented to the Tribunal evidence of his child’s Australian citizenship.

12. The Tribunal is generally of the view that given the children’s young age, he would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with parents and the applicant has not satisfied the Tribunal that his son’s particular circumstances would render him unable to adapt to the new environment or make it difficult for the child to do so.

13. While it is in the best interests of a child to be cared for by both parents, this need not necessarily occur in Australia, irrespective of the child’s citizenship or country of birth. If the applicant’s visa is cancelled and his wife’s visa application is refused, the family have an option of relocating to China together as a family unit and in these circumstances, the child will continue to have the care of both parents. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent’s visa is cancelled and if both parents leave Australia as a result and the family unit is preserved.

14. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the applicant’s son retains his Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the child is unlikely to be able to acquire Chinese citizenship and that may mean that he will not have access to public systems, including healthcare and education. It may be necessary for the child to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the child will require residence permits to remain in China on a long term basis.

15. The Tribunal accepts that the residence of the Australian citizen child in China, where he cannot acquire Chinese citizenship without renouncing the Australian citizenship, and where he may be required to reapply for visas and routinely register with the local authorities and have limited access to government services, may cause hardship to the family. The Tribunal accepts that given his Australian citizenship, the applicant’s son may experience significant limitations in various aspects of his life in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’s child would be adversely affected by the cancellation of the applicant’s visa. That is, it is in the best interests of the child if the applicant’s visa is not cancelled. This is a primary consideration but it is not a determinative one.

16. The applicant also told the Tribunal that he would not earn as much as he does in China and he would not be able to support his family. The applicant claims that his child is used to the English speaking environment and the Australian education system and would find it difficult to adapt to life in China. The Tribunal does not accept that claim, given that the child is about 10 months old and would not have had any exposure to the Australian education system. The applicant claims that he wants his child to be educated in Australia and the education system here is different, and while the Tribunal accepts that is the case, the applicant has not established that one is necessarily better than the other.

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

17. There is no evidence, and the applicant does not claim, that Australia’s protection obligations arise in this case. The applicant told the Tribunal that his parents would be upset if the family was to return to China but in the Tribunal’s view, such matters do no give rise to Australia’s protection obligations.

18. The applicant’s son lives in Australia and is an Australian citizen. His partner lives in Australia but does not have a permanent visa. It is open to the family to relocate as a family and the Tribunal does not consider that the family unity obligations would be breached by the cancellation of the visa.

    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

19. If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion he would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas he could validly apply for due to the operation of s 48. The applicant may be subject to an exclusion period if he was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements he had acquired as a permanent resident of Australia. He may also be unable to sponsor his partner for an Australian visa.

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

20. In his response to the NOICC, the applicant states that if his visa is cancelled, it would affect his life and future plans. The applicant states that he would have to return to his hometown in Heilongjiang which is an industrial area affected by air pollution and he is concerned about his child’s health. The Tribunal found the applicant’s evidence vague and unsupported by any probative evidence, either concerning the level of pollution in the applicant’s hometown or the possible effect it would have on his child’s health. In the absence of probative evidence about the effect of the claimed pollution on his child’s health, the Tribunal does not accept that the child’s health would be affected if the child was to relocate to China.

21. The applicant also provided evidence of high unemployment in China and the high cost of living. The Tribunal does not find such generalised statements helpful. The applicant presented no satisfactory evidence of having applied for jobs in China and of having been unable to find employment in China. There is no evidence as to what the applicant’s income may be and what his future expenses may be. While there may be a high unemployment rate in China, it is not necessarily obvious that it affects all industries and all geographic locations and the applicant has not established that to be the case. On the evidence before it, the Tribunal does not accept the applicant would be unable to find employment in China. The applicant also refers to his wife’s qualifications, noting that she would be unable to find a job in her own field and the Tribunal accepts that it may be difficult or impossible for her to work in the specific field, given her Australian qualifications, but the Tribunal is not satisfied on the evidence before it that other work may not be available to her.

22. The applicant states that their parents are elderly and he has not been able to tell them about the visa cancellation as he is concerned about their health. The applicant states that he may lose his job and may struggle to support himself. The applicant states that he is also concerned about his wife, whose mood has not been stable since his visa was cancelled. The applicant states that his young son needs his mother. The Tribunal is mindful that the cancellation of the applicant’s visa should not lead to the separation of the young child and his mother.

23. The applicant states that the cancellation of his visa would affect his employer who has given him a lot of responsibilities, and if he leaves, their usual clients may leave the company and the company would suffer a great loss, and his work colleagues would also experience hardship as they lack experience and language skills. Again, the applicant’s claims are entirely unsupported by any probative evidence. It is not apparent why the company’s clients would leave the company if the applicant was to leave. While the applicant provided to the Tribunal general information about skills shortage in Australia, the applicant presented no evidence that his specific employers would be unable to replace him. The Tribunal is mindful that the applicant is free to leave his employer at any time and most employers would have done some planning for such an eventuality. In this case, the employer was put on notice in November 2021 that the applicant’s visa has been cancelled and that he may be required to leave Australia. In the Tribunal’s view, that would have given the employer time to consider alternative arrangements in case the applicant could not remain in Australia. The Tribunal does not accept that the cancellation of the visa would have the consequences for the applicant’s employer and colleagues to which the applicant refers. 

24. The applicant refers to his wife’s Australian qualification, stating that if his visa is cancelled, her application would be refused and she will end up with a ‘visa refusal record’, despite being innocent, and his wife will suffer because of him. The Tribunal accepts that evidence. The applicant claims that due to her Australian qualifications, his wife may find it difficult to find a job in China. The Tribunal is prepared to accept that Ms Zhang may not be able to find employment in China in the same field for which she trained in Australia, but the applicant presented no evidence that she would be unable to find employment in another field.

25. The applicant refers to the length of time he has spent in Australia and his stable family life. He states that he has property in Australia and has rarely returned to China. He states that he has adapted to the Australian environment and he and his partner have focussed on their lives in Australia. The Tribunal accepts that evidence but is mindful that the applicant had previously spent his entire life in China before making the decision to study and then migrate to Australia. Despite having limited or no connections to Australia, the applicant was able to establish himself in this country. In the Tribunal’s view, he would be equally able to re-establish himself in China where he (and his partner) have spent the majority of their lives.

26. The applicant states in his evidence to the delegate that his wife has recently given birth and she is in a fragile state, and the cancellation of his visa would affect her physical and mental condition. The applicant refers to their future plans of running their own business, his wife returning to work and of providing a better education for their child. The Tribunal is mindful that the applicant’s partner does not have an Australian permanent visa and in the Tribunal’s view, cannot assume that she would be permitted to remain in Australia permanently before such a visa has been granted. As for the applicant himself, the Tribunal accepts that the applicant has made plans for the family’s future in Australia. The Tribunal places some weight on the fact that the applicant’s residence in Australia, his settlement in Australia and his ability to make future plans in Australia stem from the fact that the applicant was granted the Australian permanent visa to which he was never entitled.

27. The applicant refers to his wife’s depression during pregnancy and claims that it continues even now. He states that they have not been able to see a psychologist due to child-caring responsibilities. In the Tribunal’s view, if Ms Zhang was genuinely suffering from depression or mental health or general health issues, she would find the opportunity to seek professional help. The applicant’s evidence to the Tribunal is that his wife has not seen a health professional and has not been professionally diagnosed with depression and it is only his view and the view of their friends. The Tribunal is not prepared to accept the applicant’s diagnosis and, in the absence of medical evidence, the Tribunal does not accept the applicant’s claim that his wife’s health would be adversely affected if his visa is cancelled.

28. The applicant told the Tribunal that his parents are not in good health and they would be very upset if he has to return to China, so he has not told his parents about the cancellation of the visa. The Tribunal is prepared to accept that evidence.

29. The applicant told the Tribunal that he would not be able to meet the financial costs of living in China, particularly as his child would have to go to an expensive private school and they have nowhere to live. The applicant states that he would not be able to earn as much in China and he states that the economy in his hometown is ‘very bad’. The applicant refers to strict COVID-19 lockdowns, which may also affect his income. As noted elsewhere, the applicant presented very little evidence to support these claims. For example, there is no evidence before the Tribunal as to what the applicant’s expenses might be in China and what his, or his wife’s earning capacity might be, and whether there are other sources of income they may rely on (such as property in Australia, family or friends). 

30. The applicant refers to the family dog, stating that the dog brought them much joy and they never left him alone but if they were to return to China, they may have to put the dog up for adoption. The Tribunal accepts that evidence, although it may also be possible for the applicant to bring the dog to China, following the appropriate quarantine requirements. The applicant provided to the Tribunal a media article about a dog being killed in China. The relevance of this is not entirely clear to the Tribunal given the applicant’s claim that they would not take the dog to China. The Tribunal is also of the view that the general behaviour of the population in China cannot be ascertained by reference to a single reported incident. Should the applicant decide to bring his dog to China, the Tribunal does not consider that there is a risk of the dog being harmed in the way described in that article.

31. The applicant also concedes that when sponsoring his wife for the Partner visa, he referred to his relationship with Ms Liu, which he claimed was in existence between August 2014 and March 2017. (This information was provided to the applicant pursuant to s 359AA of the Act.) The applicant told the Tribunal that the agent wanted to provide consistent information in his Skilled visa application and the Partner visa application. The applicant claims that the agent completed the form and he thought that as long as their relationship was genuine, it would be ok. The Tribunal finds that the applicant gave false or misleading information when sponsoring Ms Zhang for a Partner visa. The applicant’s preference was consistency, rather his obligation to provide truthful information. The applicant’s disregard for the truth in his dealings with Immigration is of significant concern to the Tribunal.

32. The applicant repeatedly told the Tribunal that he is sorry for the mistakes he has made. However, he also repeatedly stated that the incorrect information was provided by the agent and his only mistake was not to check the forms. The applicant appears to wish to minimise the extent of his involvement in the fraud. The Tribunal is also mindful that, having provided incorrect answers in his own Skilled visa application, or having caused such answers to be provided, the applicant did the same when sponsoring his partner. In the Tribunal’s view, if the applicant was genuinely concerned about his conduct in the Skilled visa application, he would not have continued in the same conduct in the sponsorship of his wife.

1. Ms Zhang also described the hardship that the family would experience if the applicant’s visa is cancelled. She referred to her parents’ poor health and states that their parents had sold property and contributed a lot to allow them to buy a property in Australia. Ms Zhang states that she wants her son to get an Australian education and she is concerned about the cold in their hometown and how it would affect their child. Ms Zhang states that it would be difficult to find a job in China and if she does get a job, her salary (and her husband’s salary) would be low and not enough to give their child an education. These matters are addressed elsewhere in this decision and the Tribunal generally accepts Ms Zhang’s evidence.

2. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there was non-compliance with ss 101 and 103 of the Act and that there are grounds for cancelling the applicant’s visa.

3. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. Most significantly, the Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant and his family. This is likely to include the loss of employment for the applicant and the potential difficulty of finding new employment for him and his partner in the future, financial loss and a possible inability to repay the mortgage. The Tribunal accepts that if the applicant was to leave Australia, this may affect his social, financial, employment and other ties in Australia. In particular, the Tribunal acknowledges the length of time the applicant has spent in Australia and accepts that he has formed significant ties in this country and that his preference is to remain in Australia. Generally, the Tribunal accepts that hardship would be caused to his family if the applicant’s visa is cancelled. The Tribunal is prepared to accept that some hardship may be caused to the applicant’s employers, at least in the short term, if the applicant cannot continue with his current employment.

4. The Tribunal accepts that the applicant contributes to Australia through his employment and, importantly, that he has specialised skills that may be in demand in Australia. The Tribunal accepts that the applicant is well regarded by his employer and will continue to contribute through his skills and knowledge if he is able to remain in Australia.

5. The Tribunal also acknowledges that if the applicant does not hold a permanent visa, his partner is unlikely to be granted her visa. The Tribunal acknowledges the applicant’s evidence about his wife’s mental and general health. Also, significantly, the Tribunal has formed the view that it is in the best interest of the applicant’s Australian citizen child that the visa not be cancelled. It is a primary consideration, but not a determinative one.

6. The Tribunal accepts that the applicant contributes to the community through employment and other activities. The Tribunal accepts that the cancellation of the applicant’s visa would have serious implications for other family members. The Tribunal accepts that it is the preference of the family, for a variety of reasons, to remain in Australia and not to relocate to China. The Tribunal accepts that for a variety of reasons explained by the applicant, there are strong reasons why the visa should not be cancelled and also that a primary consideration supports a finding that the visa should not be cancelled. The Tribunal has given these significant weight.

7. Against these considerations, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. Essentially, the applicant was aware that he was seeking the Skilled visa as a de facto partner of another person and he knew that that relationship did not exist. The Tribunal has formed the view that the applicant had deliberately and knowingly engaged in serious fraud in order to obtain the visa. If it was known to the decision-maker that he was not the de facto partner of the primary visa applicant, the applicant would not have been granted the visa. The Tribunal is mindful that many of the aspects of his settlement in Australia, to which the applicant refers, stem from the fact that the applicant obtained a visa to which he was not entitled. This weighs very strongly in favour of the cancellation.

8. The Tribunal also places weight on the fact that the decision to grant the visa was based, to a very significant degree, on the incorrect answers and bogus documents. It cannot be said in this case that incorrect answers and bogus documents were not relevant or peripheral in assessing the applicant’s eligibility for the visa. On the contrary, his claimed relationship with the primary visa applicant was central to his eligibility for the visa. If the correct information was known, the applicant is unlikely to have been granted the visa.

9. The Tribunal places some weight on the fact that the applicant continued to provide incorrect information when sponsoring his partner.  The applicant’s desire for consistency (which, in the Tribunal’s view, was based on his desire not to ‘get caught’) was of greater import to him than his obligations to provide truthful information when dealing with the Department. This also weighs heavily in favour of the cancellation.

10. Overall, the Tribunal accepts that there are strong reasons why the visa should not be cancelled but in all the circumstances of this case, the Tribunal has decided to place greater weight on the factors in favour of the cancellation.

11. 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

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

    Kira Raif
    Senior Member