Hu (Migration)

[2021] AATA 2941

Hu (Migration) [2021] AATA 2941 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jianmin Hu
Ms Xiaoqing Zeng
Miss Yahui Hu
Mr Huilong Hu
Miss Zengyue Hu

CASE NUMBER:  2017808

HOME AFFAIRS REFERENCE(S):          BCC2020/1271551

MEMBER:Jason Pennell

DATE:8 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

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

Statement made on 8 June 2021 at 11.24am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in visa application – English language proficiency – bogus document – IELTS Test Report – test undertaken by imposter – consideration of discretion – applicant’s present circumstances – significant social and educational ties to Australia – valued employee for sponsored employer in regional Australia – best interests of children – Australian citizen child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 100, 101, 103, 107, 107A, 109, 140
Migration Regulations 1994 (Cth), 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 first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (‘the Act’).

2.The delegate cancelled the Subclass 187 visa on 8 December 2020 on the basis that the applicant did not comply with s.101(b) and s.103 of the Act, having determined that the, applicant provided incorrect information and provided a bogus document in relation to his English test supplied in support of his Subclass 187 visa application to the Department of Home Affairs (‘the Department’).

3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.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, Mr Jianmin Hu (‘the applicant’). The other visas of Ms Xiaoqing Zeng, Miss Yahui Hu, Mr Huilong Hu and Miss Zengyue Hu were 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 applicants.

5.The applicant appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The hearing was conducted via video conference using the Microsoft Teams program. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lee Westlake, Mr Ricky Sprigg, Mr Petro De Carvalho, Mrs Ana Carvalho, Mr Peter Lowe and Mrs Maud Lowe.

6.The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7.The applicants were represented in relation to the review by their registered migration agent.

8.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with s.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.

2. 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.

Applicants Documents

1. The applicant provided the following material in support of his review application:

   (a)Mr Liang Lu written submission response to NOICC dated 22 November 2020 and 21 May 2021.

   (b)Passport of Ruijie Jack Hu issued 10 April 2019.

   (c)Department of Home Affairs notification letter dated 8 December 2020.

   (d)Birth certificate of Ruijie Jack Hu registered on 9 November 2018.

   (e)Department of Home Affairs decision record dated 8 December 2020.

   (f)A statutory declaration signed and dated by him on 20 November 2020.

   (g)Year 12 certificate for Yahui Hu from North Lake Senior Campus dated 29 October 2020.

   (h)Endeavour Scholarship for Yahui (Diana) Hu from Booragoon Rotary dated 15 October 2019.

   (i)A letter from the WA Premier to Year 12 students, not dated

   (j)A certificate of recognition for Yahui Hu from North Lake Senior Campus dated 30 October 2020.

   (k)Endeavour Award for Yahui Hu from North Lake Senior Campus dated 30 October 2020.

   (l)Achievement Award for Yahui Hu from North Lake Senior Campus dated 30 October 2020.

   (m)Participating in the IEC Reading Club for Yahui (Diana) Hu from North Lake Senior Campus dated 23 November 2017.

   (n)High Participation in the IEC Reading Club for Yahui Hu from North Lake Senior Campus dated 14 June 2017.

   (o)Completion of the Intensive English Course for Yahui Hu from North Lake Senior Campus dated 14 June 2018.

   (p)WA Certificate IV in Health Science Foundations for Yahui Hu from Tactic Learning dated 31 August 2020.

   (q)Award for being a 2019 state finalist, Viper Dragons Professional Class ROV North Lake Senior Campus for Yahui (Diana) Hu from Re-Engineering Australia Foundation.

   (r)Award for Best Sea Trial ROV Professional Class from Re-Engineering Australia Foundation (no name or date).

   (s)Award for Best Manufactured ROV, ROV Professional Class from Re-Engineering Australia Foundation (no name or date).

   (t)Intensive English Centre Outstanding Student Award for Huilong Hu from Lynwood Senior High School Dated Semester 1, 2017.

   (u)Statement of Attainment for Work Safely in the Construction Industry for Huilong Hu from Deltawest Training issued 17 April 2019.

   (v)Top Performer in Wood Technology award for Jay Hu from Rossmoyne Senior High School dated August 2019.

   (w)Top Performer in Mathematics Accelerated award for Jay Hu from Rossmoyne Senior High School dated December 2018.

   (x)Certificate of Participation in Australian Geography Competition 2018 for Jay Hu sponsored by multiple universities and Department of Education and Training dated 2018.

   (y)IEC Merit Certificate / Principal’s Award for Huilong Hu from Lynwood Senior High School.

   (z)Merit Award Certificate for Zengyue Hu from Parkwood Primary School dated 20 October 2017.

   (aa)Certificate of Merit for Athena Hu from Willetton Primary School dated 27 July 2018.

   (bb)Certificate of Merit for Athena Hu from Willetton Primary School dated 15 May 2020.

   (cc)Certificate of Merit for Athena Hu from Willetton Primary School dated 13 November 2020.

   (dd)Letter of support and employment reference for Jianmin Hu from Dalwallinu Concrete Pty Ltd dated 19 November 2020.

   (ee)Tax assessment for Jianmin Hu from Australian Taxation Office (ATO) for years ended 30 June 2017 to 30 June 2020.

   (ff)Notification of approval of Australian citizenship for Mr Jianmin Hu, Huilong Hu (20/09/2003) and Zengyue Hu (16/07/2009) from the Department dated 25 July 2019.

   (gg)Notification of approval of Australian citizenship for Ms Xiaoqing Zeng from the Department dated 3 September 2019.

Applicants history

1. The applicant is a 46-year-old male from China who first arrived in Australia on a Temporary Business Entry (Class UC) Subclass 457 visa on 5 October 2012.[1]

2. The applicant in support of his Regional Sponsored Migration Scheme (Class RN) Subclass 187 visa application provided the Department with an International English Language Testing System (‘IELTS’) Test Report Form (‘TRF’) (TRF number 13AU001017HUJ106A) under the same name, date of birth and passport number as the applicant. The IELTS test was conducted on 7 December 2013 in Australia and the TRF was issued on 12 December 2013.

3. The applicant was found by the delegate to have met all the relevant criteria for the grant of a Subclass 187 visa and was subsequently granted the Subclass 187 visa on 30 November 2016.[2]

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

[1]    Department decision record, Tribunal file, Doc ID no.: 7934750

[2]    ibid

1. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. Pursuant to section 107(1)(a) of the Act, the notice must provide particulars of the non-compliance as alleged by the Department. That is, the notice must set out the specific details of the applicant’s non-compliance and not simply state, for example, that the applicant had failed to comply with section 101 of the Act.[3] A notice under section 107 of the Act is not a criminal charge or a pleading in a civil action. As such, it must contain the particulars of the possible non-compliance and then the decision maker under section 108 of the Act must then decide if there has been non-compliance in the way described in the notice.[4]

2. In a Notice of Intention to Consider Cancellation dated 4 November 2020 (‘the NOICC’) the delegate detailed the particulars of non-compliance to the applicant under section 101(b) of the Act.

3. Section 101 of the Act states:

   101.Visa applications to be correct.

   A non-citizen must fill-in or complete his or her application form in such a way that:

   (a)     All questions on it are answered; and

   (b)     No incorrect answers are given or provided.

   [3]    Saleem v Migration Review Tribunal [2004] FCA 234 @ [43] per Allsop J

   [4]    Minister of Immigration and Citizenship v Brar (2012) 201 FCR 240 per North, Greenwood and Besanko JJ @ [56]-[57]

4. Section 98 of the Act provides that ‘a non-citizen who does not fill in his or her application or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.’[5]      

   [5] Section 98 of the Act

5. Section 99 of the Act provides that ‘any information that a non-citizen gives or provides, causes to be given or provided or that is given or provided on his or her behalf to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizens application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be answer to questions in the non-citizens application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.’[6]

   [6] Section 99 of the Act

6. Section 100 of the Act states that ‘an answer to a question is incorrect even though the person who gave or provided the answer or caused the answer to be given or provides did not know it was incorrect.’[7]

   [7] Section 100 of the Act

7. Section 103 of the Act provides that a person must not give, present, produce or provide a bogus document to an officer, authorised system, Minister, the Immigration Assessment Authority, or the Tribunal. Section 5(1) of the Act defines the meaning of a bogus document under the Act and it includes a document that is a counterfeit or has been altered by a person who does not have authority to do so.[8] 

   [8] Section 5(1) of the Act

8. On 4 March 2016 the applicant lodged a Regional Sponsored Migration Scheme (subclass187) visa (RSMS Visa) application. As part of the applicant the applicant completed an ‘Application for Permanent Employer Sponsored or Nominated Visa’ form and provided the following answers:

   Has the applicant undertaken an English language test within the last 36 months? - Yes.
   Give details of the most recent test.
   Name of Test:      IELTS
   Date of Test:   07 Dec 2013
   Test reference Number:   13AU001017HUJ106A
   Country where the test was undertaken:         Australia
   Language Ability:   Vocational

9. The applicant supplied a copy of his valid passport to the department in support of his application. The passport confirmed that the applicant was born on 12 December 1974.

10. The applicant also provided the department with a copy of his International English Language Testing System (IELTS) Test Report Form (TRF) numbers 13AU001017HUJ106A and displaying the applicants name and date of birth as the candidate consistent with the applicant’s passport. The test was conducted on 7 December 2013. The TRF was issued on 12 December 2013 and indicated the following scores     

    ·Listening   5.5

    ·Reading   5.5

    ·Writing   6.0

    ·Speaking   5.5

    ·Test score/ Overall band score   5.5      

11. Based on the information and supporting documentation provided by the applicant in the visa application, including his IELTS TRF, which indicated that the applicant met the English test requirements, the delegate grated the applicant the RSMS (subclass187) on 30 November 2016.

12. In the Department’s decision dated 8 December 2020, the delegate noted that a facial image comparison was conducted by the Department’s specialist Identity Resolution Centre on 27 February 2020. The Identity Resolution Centre compared a photo taken of the applicant at his interview on 28 May 2019 in relation to his application for Australian citizenship, with a photo purporting to be the applicant on the IELTS test date on 7 December 2013.[9]

    [9] ibid

13. On 3 September 2020, as a result of the Department specialist Identity Resolution Centre having conducted a facial image comparison  between a photo of the applicant taken at his interview on 28 May 2019 and a facial image held by the Department (taken 2 December 2014) of the third party from the Departments biometric system whose facial image was a match to the facial image in the applicants IELTS result provided by the applicant as part of his visa application.[10]

    [10] Forensic Facial Image Report; BCC20201271551, CLD2020/35631822, CLD2020/36015426 & CLD2020/36033394

14. On 28 September 2020 the department’s specialist forensic facial image examiner concluded that having compared the facial images, he believed they are not the same person. As such the IELTS candidate for the test conducted on 7 December 2013, TRF 13AU001017HUJ106A is not a photo of the applicant, but rather of a third party who undertook the test on that day and achieved the results detailed above.[11]

    [11] ibid

15. The applicant in his submissions dated 22 November 2020[12] and 28 May 2021[13] and in his evidence to the Tribunal admitted that he did not provide the correct information in his RSMS (subclass187) application regarding his IELTS score he confessed that the photo in the IELTS score report was not his own photo and he had a third party individual ‘imposter’ sit the test on his behalf notwithstanding the test bears his name Jianmin Hu.[14]

    [12] Letter by Mr Lu Liang of KorryLink dated 22 November 2020; BCC20201271551 CLD2020/38409320.

    [13] Letter by Mr Lu Liang of KorryLink dated 28 May 2021; AAT File No 2017808, Doc ID 0184832477. 

    [14] Letter by Mr Lu Liang of KorryLink dated 22 November 2020; BCC20201271551 CLD2020/38409320.

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

1. 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 section 101(b) and section 103 of the Act, in the following respects, the applicant provided incorrect information in his RSMS visa application in relation to this IELTS English test and the document provided by the applicant, being his IELTS test result TRF 13AU001017HUJ106A was a bogus document

2. Based on the information provided by the department and the applicant’s own evidence the Tribunal finds that the applicant did provide incorrect information in his RSMS visa application in relation to this IELTS English test in breach of s.101(b) of the Act and that the document provided by the applicant, being his IELTS test result TRF 13AU001017HUJ106A is a bogus document in breach of s.103 of the Act. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) and s.103 of the Act by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

1. 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).

2. 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. Briefly, they are:

·        the correct information

·        the content of the genuine document (if any)

·        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

·        the circumstances in which the non-compliance occurred

·        the present circumstances of the visa holder

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

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

·        the time that has elapsed since the non-compliance

·        any breaches of the law since the non-compliance and the seriousness of those breaches

·        any contribution made by the holder to the community.

1. 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.

Applicants submissions

1. The applicant admits to having provided the incorrect information as alleged in relation to his RSMS visa application. In addition, he admits to the fact that while the IELTS TRF results document bore his name, it was not his photo on the document and that he did not sit the test. However, in support of his application the applicant submitted:[15]

   [15] Delegates decision dated 8 December 2020; AAT File No 2017808 Doc ID 7934750; Letter by Mr Lu Liang of KorryLink dated 22 November 2020; BCC20201271551 CLD2020/38409320.

   (a)He received misleading advice from an unregistered migration agent who advised him ‘to take a short-cut’ and provide an IELTS test that met the requirements in order to have the best chance of having his permanent resident visa approved.

   (b)‘Fearing he may not meet the English requirement for the RSMS 187 visa, he was out of his mind to accept the ill advice.’

   (c)He admits to providing a bogus document, namely the IELTS TRF but that ‘There was no malicious intension (sic) of intentionally deceiving the Department’ and he regrets his actions.

   (d)Apart from the incorrect information he provided in his visa application, all other information is correct, true, and genuine.

   (e)While the visa grant was partially based on the incorrect information or a bogus document, ‘the then case officer is accountable for failing to identify the incorrect answer or verify the IELTS score with his or her capacity at that time.’

   (f)After residing in Australia for nearly seven years, he has established significant social and educational ties to Australia. His children have educational and social ties and he has property and employment ties. Four years have elapsed since the non-compliance.

   (g)His children should not be blamed nor held accountable for their parents’ single mistake; they are innocent and should not be punished for their parents’ actions. They are all of school age and their interests and welfare should not be negatively impacted and affected. They have also been away from their country of origin and have been isolated from their original culture and social environment for years. They may lose their social identity and education advantages if removed from Australia.

   (h)If the visa is cancelled, his youngest child Ruijie Jack Hu, an Australian citizen, will become stateless with nowhere to go as he was born in Australia and holds an Australian passport.

   (i)All his properties in China have been long sold and his previous jobs no longer exist. Relocating to China would be extremely difficult for him and his family as they have settled well in Australia in their new property in Perth. Selling their property may result in great financial loss.

   (j)Their Chinese national IDs have all been revoked for years due to their Australian permanent resident status. Their passports, once they expire in a couple of years’, will not be able to be renewed and they will be unable to restore their Chinese citizenship and identities.

   (k)He has worked as a welder for local business Dalwallinu Concrete since 2013 in a small (regional) town and continues to be employed by his employer who initially nominated and sponsored him for his 457 visa. As supported by the letter from his employer, he is an asset to the business; has demonstrated good communication skills even though English is not his first language and they are happy with his English level; and is a strong team member who has maintained his work during the COVID-19 pandemic.

1. In addition, by his submissions dated 28 May 2021[16] the applicant submitted:

   (a)He had bravely admitted his wrong doings by providing incorrect answers and a bogus document in his RSMS 187 application. He is honest in confessing his mistakes, demonstrating his moral integrity and personal openness.

   (b)He is a person to know his mistakes and willing and ready to correct them.

   (c)Mr Hu said since he came to work in Australia, it has been nearly 10 years. He spent his gold manhood time in Australia working as a first-class welder. That’s why his employer values him as their asset.

   (d)Mr Hu said he and his wife don’t mind going back to their home country. However, given the fact they have three more children, who have been receiving their education in Australia for four more years. Their eldest daughter is now being admitted into the UniReady program to do nursing at Curtin University. She makes up her mind to help the sick or the aged when she finishes her degree. It will be very difficult for them to start again. They will struggle in keeping up with their peers in the same age group if they go back.

   (e)Their youngest child, who is only 2 years and 7 months old now an Australian citizen, will be left very much awkward as to where to go. Obviously, he won’t be able to stay in Australia if his parents have to go.

   (f)Mr Hu understands that law is law. But their children are really innocent and should not face up with this cruel reality to have their visa cancelled and forced to go just because of their parent’s fault.

   (g)Mr Hu indicates that he feels very guilty for his act and is ready to do whatever is required from him to smooth over his faults.

The correct information

[16] Letter by Mr Lu Liang of KorryLink dated 28 May 2021; AAT File No 2017808, Doc ID 0184832477. 

1. It is accepted by the applicant that the incorrect information in relation to his English test was provided in relation to his RSMS visa application. However, he submits that all other information is true and correct. The tribunal accepts that all other information in the application is correct. The Tribunal gives this little weight in favour of not cancelling the applicant’s visa.

The content of the genuine document

1. The applicant provided incorrect information in relation to this IELTS English test. In addition, the applicant provided a bogus document, being the IELTS TRF No 13AU001017HUJ106A, issued in the applicant’s name but displaying a photo of a third party who actually sat the test rather than the applicant. The applicant has admitted that he supplied the bogus document. He claims that he feared that he would not meet the English language requirement. On the advice of his migration agent he agreed to take a ‘short cut’ to better his chances of obtaining a permanent resident visa.

2. The IELTS TRF is a relevant document to the applicant’s RSMS visa application. if the department had been aware that the document was bogus it would have either refused the application visa application or requested that the applicant provide a new English test result, which may have led to a different decision about granting the visa. The Tribunal places significant weight in relation to the consideration in favour of cancelling the visa.   

Whether decision to grant 457 visa based wholly or partly on incorrect information or a bogus document

1. The department granted the applicant’s RSMS visa on the basis that he met all the appropriate criteria relevant to the grant of the visa. This included having satisfied the department that he met the appropriate English standard. The primary criteria of the RSMS visa (subclass187) are closely related to the inherent nature of it being a work-related visa. As such, it was necessary for the applicant to be nominated by an approved Australian employer for a job in regional Australia, to be under 45 years of age and to demonstrate that he had the necessary skills and qualifications to be able to perform the work as determined by his nominated sponsor, in this case a wielder. The evidence of Mr Spriggs, the applicant’s employer was that the applicant is a valued employee with the necessary skills and qualification to perform his job. Therefore, it appears that the Department’s decision to grant the applicant’s the visa was based on his ability to perform the role for which he was nominated. That is, his nomination was required to meet the relevant criteria for nomination approval as well as the delegate’s recognition that the applicant has the skills and knowledge to be able to perform the role. In this case as a wielder/boiler maker.

2. Therefore, while the Tribunal accepts that achieving the minimum English score, was necessary, it was not the only basis upon which the applicant was granted the visa. As such, the decision was based only partly on his English test score. In the circumstances, where the applicant had been performing his role for a number of years to the satisfaction of his employer prior to making the application, indicate that he had reached a standard of English at least to be able to perform his role. The Tribunal places some weight in the applicant’s favour in relation to this consideration.

Circumstances in which non-compliance occurred

1. The Tribunal has detailed the circumstances of the non-compliance above. The applicant has accepted that the information provided in relation to his IELTS English test was incorrect and the document provided was bogus. The applicant submits that he has worked as a welder for local business Dalwallinu Concrete since 2013 in a small (regional) town and continues to be employed by his employer who initially nominated and sponsored him for his 457 visa. The applicant points out that because he was to work in a regional area no English test was required for the purposes of obtaining his original visa.  His employers’ evidence was that the applicant is an asset to the business and that he has demonstrated good communication skills despite English is not being his first language. The evidence of Mr Westlake and Mr Spriggs was that his level of English was good and that he had no difficulty in communication with his colleagues in the workplace. The applicant has a managerial role where he is responsible for a team of six or seven workers. The applicant was described as a strong team member who has been an asset to the business. The Tribunal places some weight on this consideration in the applicant’s favour.

Applicant’s present circumstances

1. The applicant arrived in Australia as a holder of a 457 visa on 5 October 2012. He returned to Chia for a period of approximately four months from November 2012 to March 2013. In addition, the applicant departed Australia for approximately one month in or about November 2018.[17] The applicant has otherwise remained in Australia.

   [17] Movement Records; AAT File No 2017808 Doc ID 8368466

2. On 8 March 2018 the applicant made an application for Australian Citizenship by conferral, which has been approved, but is yet to be finalised. The applicant submits that he and his family members citizenship applications have been approved but they are yet to make the pledge of commitment at an Australia citizenship ceremony due to the Covid -19 pandemic restrictions affecting the availability of such an event.[18] The applicant claims that if his visa is cancelled then his application for permanent residency would be greatly affected. The Tribunal accepts that this would be the case and give this consideration some weight in the applicant’s favour.

   [18] Letters from the Hon Davis Colman MP dated 25 July 2019 & 3 September 2019, AAT File No 2017808 Doc ID 7934746 Letter by Mr Lu Liang of KorryLink dated 22 November 2020; BCC20201271551 CLD2020/38409320. le

3. The applicant states that he and his family have established significant social and educational ties to Australia. Mr and Mrs Lowe and Mr Mrs De Carvalho all give evidence in support of the applicant and his family. They are neighbours to the applicant and his family, and all gave evidence to the effect that the he and his family were good people and valuable members of their community. The Tribunal accepts that the applicant and his family have been good members of the Australian community as claimed. The Tribunal gives this consideration a little weight in the applicant’s favour.

4. The applicant’s submission to the department was that his property in China has been sold and that he and his family have settled well into a new property in Australia. He claims that he may suffer a financial loss if he was forced to sell his property in Australia and return to China. In addition, he claims that his previous employment in China no longer exists. As a result, he will find it difficult to find employment if he was forced to relocate to China.  The Tribunal gives this consideration no weight in favour of the applicant or against him. 

Applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act

1. The applicant has been cooperative with the Department and the Tribunal. There is no suggestion that he has not complied with her obligations under the Act. The Tribunal gives this some consideration in the applicant’s favour.

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

1. There is no evidence to indicate any other instances of non-compliance by the applicant. The Tribunal gives this some weight in the applicant’s favour.

The time that has elapsed since non-compliance

1. The applicant made application for the RSMS visa on 4 March 2016. The applicant admits that he paid his agent the amount of $10,000.00 to arrange for completion of the IETLS English test without him sitting the test and for the result to be provided to the department with his application. As such, the applicant has admitted to supplying the department false information in breach of s.101(b) of the Act and supplying a bogus document in breach of s.103 of the Act.

2. Nevertheless, it has been some time since the breach occurred. The applicant has been residing in Australia with his family since 2012. The applicant has complied with all the conditions of his visa since arriving in Australia. During this time, he has worked diligently and become a valued employee for his sponsored employer in regional Australia. He and his family have been good residents having contributed broadly to the community in which they live. The applicant’s children have been educated in Australia and have integrated into the Australian community and way of life.  Overall, he has developed ties to the community having been in the same job for several years and having been responsible for the operation and running of the operations within the business for which he works. The Tribunal places some weight in relation to this consideration in the applicant’s favour.

Any breaches of law since non-compliance and seriousness of these breaches

1. There is no evidence that the applicant has breached the law. The Tribunal places little weight on this consideration in the applicant’s favour.

Applicant’s contribution to the community

1. The applicant was not able to provide any specific examples by which he has contributed to the community. However, it was the evidence of Mr and Mrs Lowe and Mr and Mrs De Carvalho that the applicant and his family did hand out masks during the Covid19 pandemic to neighbours and friends. It was their evidence they had integrated into the community having become good and valued neighbours within the community. Their evidence was that the applicant and his family are honest, hardworking and diligent people who are well liked within her community.  The Tribunal gives this consideration some weight in the applicant’s favour.

Consequential cancellations under s.140

1. The applicant’s wife Xiuaoping Zeng, and their three children Yahuio Hu (DOB 11 August 1999), Huilong Hu (DOB 20 September 2003) and Zengyue Hu (DOB 16 July 2009)  were all granted secondary visas on the basis of being members of the family unit of the primary visa holder, being the applicant. As a result of the cancellation of the applicant’s visa, his wife and their three children’s visa would also be cancelled.

2. The Tribunal accepts that the cancellation of the visas would mean that the applicant and his family would suffer some hardship. As referred to above, the applicant and his family have all developed ties to the community. The tribunal accepts that they would all suffer hardship in the vent the visa was cancelled.  The Tribunal places some weight on the consideration in the applicant’s favour.

Any breach of international obligations Australia may have because of the applicant’s visa being cancelled.

1. The Tribunal has considered if the cancellation of the applicant’s visa would breach the Convention of Rights of the Child (CRC) which states that the best interest of the child must be the primary consideration in making decisions that affect them and that a decision maker considering cancelling a visa must turn their mind to the consequences of cancellation of the visa, especially if the child will be separated for the family unit.  

2. The applicant’s evidence was that his children are at school with his eldest child, Yahui Hu having just completed school and attending first year University. The applicant claims that all his children have been away from their country of origin for many years and have been isolated for their traditional culture. If they return to China, they will lose their social identity and educational advantages. He claims that they are now settled in Australia having established a social network and have adopted Australia way of life and culture. The applicant submits that his children should not be blamed or suffer because of a mistake made by their parents. The Tribunal accepts that it will be difficult for the applicant’s children to adjust to a new life in China. It also accepts that there would be differences between the educations systems of Australia and China that would take some adjustment for them to overcome. However, the Tribunal does not accept that these differences are so great that they would not be able to adjust within a relatively short period of time. It may be that their education would be delayed, however they are all young and the Tribunal does not consider a minor delay in their education would represent such significant hardship that they would not be able to recover.

3. However, the applicant’s youngest child, Ruijie Jack Hu, was born in Australia on 22 October 2018[19] and is an Australia citizen. The applicant claims that if his visa is cancelled, his youngest child will be stateless with nowhere to go as he was born in Australia and has a valid and lawful Australian passport.

   [19] Western Australian Birth Certificate dated 12 November 2020; AAT File No 2017808 Doc ID 7934749.

4. The Tribunal is required to consider the interests of any children who would be affected by cancellation, or consequential cancellation. Decision-makers are required to consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. The Tribunal notes that it has been held that the question to be asked is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia.[20]

   [20] Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

5. Relevantly PAM3 states:

   ‘The departments policy is to give effect to the United Nations Convention on the Rights of the Child, which requires that the best interests of any affected child (under 18) in Australia be treated as a primary consideration when exercising discretionary decision-making powers. If there are children whose interests would be affected by cancellation or consequential cancellation under section 137T, delegates should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. …..’

6. The applicant submits that if his visa is cancelled Ruilie Jack Hu will be required to leave Australia. Its claimed that if he is to travel to China, he would become stateless. To travel to China with his parents the child will be required to obtain a visitors’ visa.  It is claimed that at this time due to the Covid-19 pandemic that he would not be able to obtain a visitors’ visa with China having ‘suspended all visas on arrival, including visitor visa.’[21]

   [21] >

   The Tribunal notes that Chia does not recognise dual citizenship.  As such, if the applicant’s child returns to China with his parents, as an Australian citizen, he would be required to travel to China on a visitor’s visa. As such it’s likely that once his visa expires, he will be repatriated to Australia by the Chinese government. 

7. Alternatively, if the child is to return to China with his parents and is able to obtain some other visa to remain in the country on a permanent basis as an Australia Citizen, then he will not be able to access the Chinese household registration system (‘hukou’). The hukou system ties a person’s access to state services, including health and education to an individual’s place of birth or depending on their circumstance’s their parents place of birth.[22] As an Australian Citizen the applicant’s child would not be entitled to obtain hukou. As such, he would not be able to access state benefits including education and health services.

   [22]  DFAT Country information Report – Peoples Republic of China dated 3 October 2019 (DFAT Report) @ p.51

8. In China children’s citizenship is obtained through their parents.[23] As such having Chinese parents the applicant’s child would be able to obtain Chinese citizenship upon his return to China. However, this would mean giving up his Australian Citizenship. The term ‘returned overseas Chinese couple’ refers to couples who have lived permanently in a foreign country having given up their long term permanent or lawful right of residence but have returned to China. In this case the applicant and his wife have lived permanently in Australia and have given up their household registration. Only children born after they return to China would be entitled to registration in accordance with the regulations.[24] As such the applicant’s youngest child would be considered surplus. He would be entitled to return to China for an accumulated period of 18 months within a two-year period. To obtain household registration the applicant’s youngest child must give up his Australian citizenship and become a Chinese citizen. Upon application for hukou registration for his youngest child the applicant would be required to pay a social compensation fee.     

   [23] DFAT Report @ p.51

   [24]  ibid

9. Therefore, while it is possible for the applicant’s child to obtain household registration in China, it would require his giving up his Australian Citizenship. The child is approximately two and half years old. As such it would be matter for the applicant and his wife as the child’s parents to give up the child’s Australia citizenship on his behalf upon his return to China. That is his Australian Citizenship would be removed without his direct knowledge or consent. While the Act is designed to regulate the flow of non-citizens into and out of Australia, it is contrary to the purpose of the Act to effectively require a person to give up their Australian Citizenship, legitimately obtained. In the event the applicant is forced to return to China, his youngest child will also be required to return to China, upon which, he will be required to become a Chinese citizen and give up his Australian citizenship in order to obtain access to the state services. This fact is compelling to the Tribunal and as such it places great weight on this consideration in the applicant’s favour.

Mandatory legal consequences.

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

1. In addition, the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

2. The Tribunal gives some weight to this consideration in the applicant’s favour.

Other relevant considerations

1. There are no other relevant matters that require consideration.

2. 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 not be cancelled.

3. The applicant should know that the Tribunal takes the breach of section 101(b) and section 103 of the Act very seriously and as such has only marginally made this decision in the applicant’s favour. The fact that the Department’s decision was not solely based on the wrong information provided the fact that the applicant has worked in regional Australia since his arrival in Australia and the fact that he is a valued member of his sponsors business, the social and education al upheaval that would be caused to the applicant’s children and the fact that his youngest child is an Australia resident are all factors that the Tribunal has given considerable weight in making the decision to set aside the decision under review and substitute a decision not to cancel the applicant’s visa.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

2. The Tribunal has no jurisdiction with respect to the other applicants.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

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

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

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

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

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

2. Interpretation

   In this Subdivision:

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

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

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

3. Completion of visa application

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

4. Information is answer

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

5. Incorrect answers

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

6. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

7. Bogus documents not to be given etc.

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

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

8. Notice of incorrect applications

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

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

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

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

   (A)shows that there was compliance; and

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

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

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

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

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

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

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

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

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

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

   (f)      requiring the holder:

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

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

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

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

   (b)     otherwise—14 days.

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

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

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

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

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

9. Decision about non‑compliance

   The Minister is to:

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

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

10. Cancellation of visa if information incorrect

    (1)The Minister, after:

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

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

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

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