HOU (Migration)

[2019] AATA 1106

HOU (Migration) [2019] AATA 1106 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms YING HOU
Mr Yiang He

CASE NUMBER:  1820989

DIBP REFERENCE(S):  BCC2016/3844289

MEMBER:Kira Raif

DATE:11 March 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 11 March 2019 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ground for cancellation – incorrect information in visa application  – bogus document – language proficiency test undertaken by imposter – consideration of discretion – unable to demonstrate proficient English – taken positive steps to obtain bogus document – application of PIC 4020 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109
Migration Regulations 1994 (Cth), r 2.41; Schedule 4, PIC 4013, 4020

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 Immigration to cancel the first named 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 1987. She was granted the Skilled – Independent visa in January 2016. In October 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant’s former spouse was included in the application for review. The applicant’s representative confirmed in his communication with the Tribunal that he did not receive instructions from Mr He. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa held by the applicant’s former spouse was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her 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

5. 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.

6. 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.

7. 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.

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

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

9. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. 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?

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

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

    a.The applicant made the application for the Skilled Independent visa on 22 September 2015. She was required to show English language proficiency for the purpose of the English language qualification requirement and for the purpose of the points test.

    b.On Page 11 of the form, in the ‘Language’ section, the applicant provided the following information

    Name of test  IELTS
    Date of test   13 June 2015
    Test reference number               15AU001740HOUY100A
    Country where undertaken         Australia
    Language ability   proficient

    c.The applicant provided with her application the IELTS Test Report Form number 15AU001740HOUY100A for a test undertaken in the Australian Test Centre Number AU100 on 25 June 2015. The TRF states that the applicant achieved the following scores in the test

    Listening   8.5
    Reading   8
    Writing   7
    Speaking   8
    Overall band score                    8

    d.The applicant was found to have met the English language requirements and was allocated points for her English proficiency. The applicant was granted the Skilled Independent visa on 4 January 2016.

    e.On 2 December 2016 the Department was informed by IDP Education Ltd that the applicant’s IELTS test was cancelled on 27 October 2016 as the visa holder had not sat the IELTS test but an imposter sat the test for her.

12. In her written response to the NOICC the applicant conceded that she did not sit the IELTS test and that the IELTS test report form was a bogus document. In her statutory declaration of 23 February 2019 and also in her oral evidence to the Tribunal the applicant confirmed that an imposter sat the IELTS test which was subsequently used in her visa application.

13. Having regard to the applicant’s evidence to the delegate in response to the NOICC, her evidence to the Tribunal and the information from the IELTS provider IDP Education Ltd as set out in the primary decision record, the Tribunal finds that the applicant did not sit the IELTS test on 13 June 2015. The Tribunal finds that the answers the applicant gave on her application form concerning her English proficiency and also the language test she claimed to have undertaken on 13 June 2015 were incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s.101 of the Act.

14. The Tribunal further finds that the IELTS test report form which the applicant included with her application was a bogus document because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant has given, to an officer or the Minister, a bogus document or caused such a document to be given. The Tribunal finds that the applicant did not comply with s.103 of the Act.

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

    Should the visa be cancelled?

16. 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).

17. 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

18. The correct information is that the applicant did not complete the IELTS test in June 2015 and did not achieve the scores on which she relied in her visa application. The applicant told the Tribunal that she did IELTS tests before and did not obtain the score of at least 7 in each of the test components. The correct information is that there was no evidence that the applicant had proficient English as stated on the application form.

    The content of the genuine document (if any)

19. The content of the genuine document is that the applicant did not undertake the IELTS test in June 2015. The content of the genuine document would not show the scores on which the applicant relied.

    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

20. It is a requirement for the grant of the Subclass 189 visa contained in cl.189.213 that an applicant has competent English and English proficiency is demonstrated through undertaking a language test. The primary decision record indicates that the applicant also relied on having proficient English to claim points for the points test in cl.189.214. The applicant confirmed that in her oral evidence to the Tribunal. It appears that if the applicant was unable to demonstrate competent English or proficient English, the applicant may not have met the requirements of these provisions.

21. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and a bogus document.

    The circumstances in which the non-compliance occurred

22. In her written response to the NOICC and her evidence to the Tribunal the applicant confirmed that an imposter had undertaken the IELTS test on her behalf.

23. The applicant explained to the Tribunal that she met a friend of her flatmate who told her they could arrange for someone to sit the test. This friend explained to her that this person would use a fake passport. He asked the applicant to give him her genuine passport to make the fake one with her personal details and using another person’s photograph. The applicant said that she paid this friend $20,000 to find the imposter and to arrange the test but she never met the imposter. The friend told her that once she received the results, she would be safe.

24. The applicant states in her submission to the delegate that she is ‘now very apologetic about the matter’ and has expressed ‘deepest remorse and regret’. The Tribunal finds the applicant’s expression of remorse problematic, given that such expression was only made in response to the NOICC. At no time since the test was undertaken in 2015 and prior to her submission to the delegate in October 2017 did the applicant take any steps to inform the Department about her wrong-doing. The Tribunal finds the expression of remorse to be self-serving.

25. In her statutory declaration of 23 February 2019 the applicant explained that her chance of migration dependent on her and she did her best to pass the English but her marks were not sufficient. She was depressed and at the same time was approached by someone who told her they could arrange the right scores for her. Her relationship with her husband was not good and there was financial pressure. Under pressure of her husband and their families, she chose to use the imposter to sit the IELTS test and she and her husband were subsequently granted the visas. In oral evidence to the Tribunal the applicant said that her husband could not qualify for the visa but lied to his parents that he was given the visa in his own right. She was under pressure but she knows what she did was wrong. The applicant said that she sat a few IELTS tests before but could not get the results. Because they had been living in Australia for a long time, they could not face going back.

26. The applicant told the Tribunal that she is generally an honest person and she does not lie and she has made a mistake. The Tribunal notes that the applicant was fully aware that she did not sit the IELTS test and that the results which she used were not genuine. Despite that, the applicant did rely on these test results in her visa application. The applicant also paid a considerable sum of money to arrange for another person to obtain a fake passport in her name and to sit the test for her. The Tribunal has formed the view that the applicant was deliberately untruthful in her dealings with the Department.

27. The applicant told the Tribunal that since making the application, she was always anxious about the situation and she was not happy when she was granted the visa because she thought her mistake would come to the surface. The applicant states that from 2015, her relationship with her husband deteriorated and they eventually divorced and she feels that bad things have happened to her since that issue. Her husband now has a new family.

    The present circumstances of the visa holder

28. In her declaration submitted to the Tribunal the applicant states that she was under pressure to migrate to Australia and decided to use an imposter. The applicant states that she later realised that her ex-husband lied to their parents about how they obtained the visas. She decided she cannot have a future with him and they separated and divorced in May 2017. She has had no contact with him since that date. The applicant outlined the hardship she experienced as a result of the cancellation process and states that she ‘nearly collapsed’ and could not get help from anyone. The applicant told the Tribunal that she has no contact with her ex-husband since receiving the NOICC but she knows that he has re-married and has a new family.

29. The applicant states in her response to the NOICC that she came to Australia in 2009 on a Student visa and completed degrees in banking and accounting, graduating in June 2014.She then obtained a temporary visa and a permanent visa and decided to migrate to Australia to pursue her career goal and have a better quality of life.

30. The applicant states that her sister lives and studies in Australia. The applicant confirmed to the Tribunal that her half-sister lives in Adelaide and holds a Student visa.

31. The applicant refers to her relationship with an Australian partner, which has been in existence for close to two years and their plans for marriage. The applicant states that both she and her partner have adapted to the Australian way of life and see Australia as their home.

32. In her written submission, the applicant refers to her employment in Australia in the position of business manager. She states that her employer values her and it would be a great loss to the business if she was to leave the company. The applicant told the Tribunal that she has given up that job when she moved from Perth to Sydney and has a new job now.

33. The applicant states in her response to the NOICC that she owns a property for which she and her partner committed their life savings. Evidence of the property ownership is before the Tribunal but the applicant told the Tribunal that she has sold the property. She also told the Tribunal that the property was purchased with her parents’ funds and she returned the money from the sale to her parents. This appears to contradict the applicant’s claim that the property was purchased with her life savings. The applicant also referred to the ownership of a car but she told the Tribunal she had sold the car. The Tribunal does not accept the applicant‘s claim that the cancellation of the visa would put her in ‘extreme financial hardship’ as the applicant has not presented adequate evidence concerning her finances and how these would be affected by the cancellation of the visa.

34. The applicant told the Tribunal that she and her partner are renting an apartment. The applicant has not presented any probative evidence to satisfy the Tribunal that they cannot meet their financial needs, whether or not the applicant’s visa is cancelled. The applicant told the Tribunal that if her visa is cancelled, she intends to apply for a Partner visa onshore, which may enable the applicant to remain in Australia and to continue with her employment, minimising any financial disruption. The Tribunal accepts the applicant’s evidence that an application fees and other expenses associated with the visa application are significant but the applicant conceded that she would find the funds. The Tribunal does not accept that financial hardship would be caused to the applicant or her present partner as a result of the cancellation.

35. The applicant refers to starting a relationship with her current partner and their marriage in November 2018. She states that they are planning to have a baby. She states that she moved to NSW and found a job as a bookkeeper in the same company where her husband works. The applicant provided to the Tribunal evidence of her marriage to Mr Zhang and of her divorce from her pervious husband. The Tribunal accepts that evidence. The applicant also presented some medical reports which do not disclose any concerns. The Tribunal accepts that the applicant and her partner plan to have a baby.

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

36. 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

37. There are no other known instances of non-compliance. The applicant claims she had not provided any false information or bogus documents in relation to any other visa application and had not breached visa conditions.

    The time that has elapsed since the non-compliance

38. The application for the visa was made in September 2015. Approximately three and a half years passed since the non-compliance. In the Tribunal’s view, this is not a very significant period of time.

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

39. There are no known breaches of the law although the Tribunal is mindful of the applicant’s evidence that she gave her passport to another person to arrange a fake passport in her name to be used by the imposter. This may constitute a breach of the law but the Tribunal acknowledges that the applicant has not been charged with any offences.

    Any contribution made by the holder to the community.

40. The applicant refers to her employment and settlement in Australia. The Tribunal accepts the applicant contributes through the payment of taxes. The applicant also claims that she paid significant fees for tuition and contributed to the Australian economy through her previous study and work in Australia. The Tribunal is not convinced that the applicant’s study constitutes her contribution to the community. 

41. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

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

1. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. Her partner’s visa has also been cancelled and he may also become an unlawful non-citizen if her visa remains cancelled. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to detention and possible removal from Australia. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period. The applicants may lose certain entitlements they had as Australian permanent residents. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention offshore although there are restrictions on the visas the applicants could apply for onshore.

2. The applicant states that PIC 4020 would apply to her for a year since the cancellation of her visa. The Tribunal notes that PIC 4020 would apply as a result of the applicant providing false or misleading information and a bogus document in relation to her Skilled visa and not as a result of the cancellation of that visa. The Tribunal is also mindful that there are waiver provisions that apply in relation to PIC 4020. The applicant asked the Tribunal to postpone making the decision in this case until PIC 4020 period expires. The Tribunal decided not to do that firstly because PIC 4020 is not a consequence of the present cancellation and, secondly, because the applicant has an opportunity to seek a waiver of PIC 4020 if she does not wish to postpone her future visa application.

   Whether there would be consequential cancellations under s.140

3. The visa held by the applicant’s partner has been cancelled. 

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

4. There are no children affected by the cancellation. With respect to family unity principles, the applicant provided evidence of her marriage to an Australian citizen and she also told the Tribunal that her half-sister lives in Australia on a Student visa. The Tribunal accepts that the applicant has family in Australia and notes that the applicant also has parents overseas.

5. There is no evidence, and the applicant does not claim, that Australia’s protection obligations would be engaged as a result of the cancellation. The applicant also told the Tribunal that she intends to apply for a Partner visa and would not return to China. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

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

6. The applicant refers to the length of time she has spent in Australia and her settlement in Australia. The Tribunal accepts that the applicant has been resident in Australia for over ten years and that she is well settled in Australia, although the Tribunal is mindful that the applicant only held a permanent visa for about three years. The Tribunal accepts that the applicant’s partner and sister live in Australia and that she has formed friendships in this country. The applicant states that she had contributed to the Australian economy through her past study and employment and the Tribunal accepts that the applicant has studied and worked in Australia, although the Tribunal is also mindful that the applicant’s motivation may have been the grant of a permanent visa and financial gain, rather than contribution to the community.

7. The applicant states that she is used to the Australian environment and that it would be difficult of her to re-establish herself in China. The Tribunal accepts that the applicant has been living in Australia for a long time and that she is used to the Australian lifestyle. The Tribunal accepts that it may take time for the applicant to re-establish her life in China, although the applicant has not satisfied the Tribunal that doing so would cause her significant hardship, given the applicant’s family ties in China and her capacity to live independently as she has done in Australia. Further, the Tribunal is mindful of the applicant’s evidence that she intends to apply for a Partner visa and will not return to China.

8. The applicant states in her written evidence that she has conformed to the values to the Australian community. The Tribunal finds that claim problematic, given the applicant’s deliberate decision to falsify evidence and claims in order to obtain the Australian visa. In the Tribunal’s view, intentionally misleading a government agency in order to obtain a personal benefit is not in conformance with the values of the Australian community. 

9. The applicant claims in her written evidence that the cancellation of the visa would cause hardship to her and her partner. The Tribunal is mindful that the applicant may be eligible to apply for a Partner visa, if her present relationship is genuine and her evidence to the Tribunal is that she will make such an application onshore as she does not plan to leave Australia. The applicant argues in her written submission to the Tribunal that she would not be granted the Partner visa because of PIC 4020. The Tribunal is mindful that there are waiver provisions in relation to the application of PIC 4020 and the same arguments that the applicant put forward to the present Tribunal in relation to the hardship that her partner may experience as a result of the cancellation of her visa may also be relevant to the exercise of discretion in relation to PIC 4020. The Tribunal acknowledges that there can be no guarantee that the applicant will be granted a Partner visa but if the applicant’s only concern is the application of PIC 4020, the Tribunal notes that the applicant has not been the holder of the Skilled visa since July 2018 and PIC 4020 would only be applicable in relation to the visas held in the 12 months prior to the Partner visa application being made (provided the applicant does not produce any false or misleading information or bogus documents in relation to her Partner visa application). Thus, even if the applicant chooses to delay her Partner visa application to avoid the application of PIC 4020, such delay would be quite brief. In such circumstances, the Tribunal does not consider the hardship that would be caused to the applicant or her partner due to the cancellation of the present visa would be significant.

10. The applicant states in her written submission that she could not be granted a temporary visa offshore and it would be difficult of her partner to relocate to China due to the length of his residence in Australia. She claims they will face difficulties if they have a child overseas. The Tribunal considers claims in relation to the hardship that a baby born overseas will face to be very premature and speculative. The Tribunal also notes the applicant’s evidence that she intends to make the application onshore and has no intention of leaving Australia.

11. The applicant states that if her visa is cancelled, she would be on a bridging visa while waiting for the outcome of her Partner visa application and she cannot travel overseas to see her elderly parents. The applicant told the Tribunal that prior to 2015 she travelled to China every 18 months and since that time her parents had visited her in Australia but she had not travelled to China. The Tribunal accepts that if the applicant holds a bridging E visa, she cannot travel and return to Australia. However, the Tribunal is mindful that the applicant had not returned to China since 2015 and her parents had been able to visit her in Australia. There is no obvious reason they could not so again if the applicant wishes to see them while she holds a Bridging E visa. Further, if the applicant is to be granted the permanent visa, any travel restrictions would only be temporary. If the applicant wants to spend more time with her parents in the meantime, she is able to make her Partner visa application offshore.

12. The applicant told the Tribunal that her parents divorced when she was young and she does not want to “disturb them” by staying with them. She states that when she has visited China for short periods since she moved to Australia, she had lived with her parents for a few weeks at a time but if she were to live in China for a longer period, she would have to rent a room. The Tribunal is prepared to accept that the applicant may be unwilling to stay with her parents for longer periods but the Tribunal also notes that the applicant is an independent adult who is capable of providing for herself, as she has done during her residence in Australia. The applicant agrees that she could find a place to live if she were to return to China. The Tribunal does not accept that hardship would be caused to the applicant’s parents if her visa is cancelled and the Tribunal does not accept that the applicant would be unable to find accommodation and support herself during any period of residence in China (noting the applicants’ evidence that she has no intention of returning to China).

13. The applicant also states that her parents would be disappointed or ashamed of her because she completed her study in Australia but would not have achieved anything. The Tribunal accepts that it may be the preference of the applicant’s parents for the applicant to remain in Australia.

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant gave incorrect answers and a bogus document with her visa application. The applicant concedes that she has done so. The Tribunal rejects the applicant’s expression of remorse, given that it was only put forward when the applicant was faced with the possibility of her visa being cancelled and there is no evidence that the applicant had expressed any remorse, or had taken any steps to bring herself to the attention of Compliance or the Immigration Department, prior to receiving the NOICC. The Tribunal considers the expression of remorse to be self-serving.

15. The Tribunal accepts that the applicant has been living in Australia for many years, is well settled in this country, is gainfully employed and has formed relationships with her partner and friends and also her sister who lives in Australia, albeit on a temporary visa. She works and pays taxes. The Tribunal accepts that some hardship would be caused to the applicant and family if she was required to leave Australia as a result of her visa being cancelled. The Tribunal also acknowledges that the cancellation of the applicant’s visa would lead to the cancellation of the visa held by her former partner.

16. The Tribunal is also mindful that as the applicant now claims to be in a spousal relationship with an Australian citizen, she may be able to make an application for a Partner visa, either onshore or offshore and the applicant’s evidence to the Tribunal is that this is her intention to make such an application. The Tribunal acknowledges the applicant’s submission that she would be subject to an exclusion period in PIC 4013 in relation to temporary visas (but not in relation to a Partner visa application) and PIC 4020 in relation to a future partner visa application but the Tribunal is mindful that there are waiver provisions applicable to both. In such circumstances where, the Tribunal considers that the hardship to the applicant and her family would be significantly minimised. 

17. There are no other known instances of non-compliance and no known breaches of the law, although the Tribunal has significant concerns about the applicant’s involvement in the preparation of a bogus passport. About three years passed since the non-compliance. The Tribunal acknowledges that the applicant has expressed remorse for her actions, although the Tribunal is mindful that such remorse was only expressed in response to the NOICC and there is nothing to suggest that the applicant had otherwise taken any steps to rectify the situation or inform the Department about the provision of the bogus document with her visa application.

18. Against these considerations, the Tribunal considers the circumstances in which the non-compliance occurred to be significant. The applicant had taken positive steps, and paid a significant fee, to arrange for an imposter to sit the English test a bogus document and had done so with the deliberate intention of misleading the Department and obtaining the visa. Although the applicant claims she conforms to the Australian values, that did not prevent the applicant from taking steps to falsify information in her migration application. The Tribunal also places significant weight on the fact that the decision to grant the visa was based on incorrect information and a bogus document. The applicant confirmed in her evidence to the Tribunal that she did not have the requisite IELTS score and could not achieve that score after several attempts. In the absence of the right score, the applicant would not have been able to meet the requirements for the grant of the visa.

19. While there are reasons to exercise the discretion in favour of the applicant, the Tribunal has formed the view that the nature of the breach, the circumstances in which the breach occurred, which involved the applicant taking positive steps to obtain the bogus document, and the fact that the applicant would not have been entitled to the Skilled visa if she was unable to demonstrate the English proficiency, outweigh other considerations.

20. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    Conclusion

21. 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

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

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

    Kira Raif
    Senior Member